http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8

CASE NO.:

Appeal (crl.) 590 of 1999

PETITIONER:

State of Karnataka

RESPONDENT:

Papanaika & ors.

DATE OF JUDGMENT: 14/10/2004

BENCH:

B.N.Agrawal & A.K. Mathur

JUDGMENT:

J U D G M E N T

A.K. MATHUR, J.

This appeal is directed against an order of the Karnataka High

Court whereby the Division Bench of the High Court has acquitted all

the six accused persons by its order dated April 3,1998 passed in

Criminal Appeal No.962 of 1996. Hence the present appeal has been

filed against the order of acquittal of the aforesaid six accused

persons.

Brief facts which are necessary for disposal of this appeal are

that a charge-sheet was filed by Kavalande Police-Station against 17

accused persons under Sections 143, 147, 148, 341, 302 and 324 of

the Indian Penal Code ( hereinafter to be referred to as "I.P.C.") read

with Section 149, I.P.C. Allegations were that accused 1 to 17 on

March 24, 1996 at about 4.00 p.m. at Mallahalli village, Nanangud

Taluk, formed an unlawful assembly with the common object to cause

the death of Dasanaika, husband of P.W.1. In pursuance of such

common object such assembly was formed and they were armed with

deadly weapons like Chopper, iron rod, clubs and stones. All the

accused persons wrongfully restrained Dasanaika and murdered him

intentionally causing injuries. They also caused injuries on P.W.4 by

stone. It is alleged that there are rival factions in the village and the

whole incident leading to lodging of F.I.R. is alleged to have taken

place in the early hours of March 24, 1996 when P.W.1 Malligamma,

went to the village well for fetching water. It is alleged that she had

filled one pitcher and she was drawing water to fill the next pot, at

that time Jayaraju, son of Puttamada Nayak- A-3, came there to fetch

water for his bullocks. Jayaraju allowed the bullocks to take water

from one pitcher filled by Malligamma. This was objected to by P.W.1.

Thereupon, Jayaraju kicked the water pitcher and kicked P.W.1.

However, with the intervention of other elderly women Karigamma,

Nanjamma and Kempanaik , she was persuaded to go back to her

house. In the afternoon at 2.30 P.M. when her husband came back

from Nanjangud Court she narrated whole incident of the

maltreatment given by Jayaraju to her and she asked him to lodge a

complaint. But her husband went to his younger brother, Puttaswamy

for consultation and thereafter they went to their elder brother,

Ponnanaika. The houses of Puttaswamy and Ponnanaika are

adjacent to each other. It is alleged that at 4.00 P.M. she heard some

shouting and she saw her husband, Dasanaika was being chased by

a group of 10 to 12 persons. They were all persons of other factions

of the village and they were chasing her husband towards the house

of Chairman-Dasanayaka. It is alleged that A-1, Papanaika was

holding a chopper, A-2, Mahadevanaika @ Mahadeva @

Chikkavanu son of Govindanaika was armed with an iron rod and A-

7 & A-8 were holding clubs and other accused persons had clubs or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8

stones in their hands. When her husband, Dasanaika came near the

house of Chairman-Dasanayak, A-1 gave a blow by his chopper on

the head of her husband and on other parts of the body. Similarly, A-

2, Mahadevanaika beat her husband by means of an iron rod on

different parts of the body and rest of the accused persons beat her

husband with the clubs and stones. She ran towards her husband to

rescue him and she raised her hands to ward off the blows on her

husband; the blows fell on her right hand and caused injuries to her

wrist. Her husband fell down and became unconscious. Meanwhile,

one Shankar, P.W.4, son of Ponnanaika came running to rescue her

husband but he was also beaten with stones and clubs which hit his

forehead and all over his body. He fell down near the house of

Ramanaika and became unconscious. A report of this incident was

immediately lodged at the Police-Station and on the basis of the

statement of the P.W.1, an F.I.R. was chalked out. Thereafter,

Dasanaika, the injured was immediately taken to the hospital and

ultimately he succumbed to his injuries. He received as many as 29

injuries on dissection of his body, 9 injuries were also found including

fracture of parietal and occipital bones and fractures on the hands

and feet. After necessary investigation, the police filed challan

against 17 accused persons. Prosecution examined as many as 36

witnesses and got a large number of documents exhibited. The police

arrested the accused persons, the chopper and iron rod were

recovered at the instance of the accused persons. Out of the 36

witnesses, there are seven eye witnesses examined by the

prosecution and rest of the witnesses were to the recovery of the

seized articles and the medical evidence.

The case was ultimately committed to the Court of Session and

learned II Addl. Sessions Judge, Mysore after scrutinizing all the

evidence came to the conclusion that so far as the guilt of the

accused, A- 1 to A-6, it is fully established and convicted and

sentenced A-1 to undergo R.I. for one month under Section 341, for

two years under Section 324 and imprisonment for life under Section

302 read with Section 149, I.P.C. A2 to A-6 were sentenced to

undergo R.I. for one month for the offence u/S 341 I.P.C. and

imprisonment for life for the offence under Section 302 read with

Section 149 I.P.C.

Aggrieved against the said order of conviction and sentence,

A-1 to A-6 preferred an appeal before High Court and the Division

Bench of the High Court acquitted all the accused persons on the

ground that when the witnesses were disbelieved for large number of

accused persons involved, therefore, it is not trustworthy to uphold

the conviction of the six accused persons on the basis of the same

evidence. Hence, the learned Division Bench acquitted all the

accused persons.

Aggrieved against the said order of acquittal dated April 3,1998

passed by the Karnataka High Court, the present appeal was filed by

the State of Karnataka.

Learned counsel for the appellant-State submitted that in view

of the consistent and reliable statement of the eye witnesses, the

Division Bench of the High Court has completely gone wrong in

reversing the order of conviction into an acquittal simply on the

ground that the evidence of some of the witnesses were inconsistent

about the alleged occurrence and moreover large number of accused

persons had been acquitted by the learned trial court, therefore it is

not safe to believe this evidence to uphold the conviction for

remaining accused. Learned counsel for the appellant read out to us

the statement of the eye witnesses and tried to persuade us that

small discrepancy in the version is just but natural and relationship

between the parties cannot be a ground to disbelieve all the eye

witnesses. Learned counsel for the appellant also invited our

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8

attention to some of the decisions of this Court in his support which

we will deal at appropriate stage.

As against this, learned counsel for the respondents has taken

us to the statement of the witnesses and submitted that all the

witnesses are either interested or inimical. He further submitted that

there are two factions in the village and all the witnesses who have

deposed in this case belong to other faction and they are interested

witnesses because of their close relationship with the deceased. He

also submitted that the houses of the accused were damaged and A-

1 also received injuries which has not been explained by the

prosecution. Therefore, the prosecution has not come forward with

the correct version of the incident. He submitted that this was a case

of free fight and not a case that the accused persons chased the

deceased and waylaid him and abandoned him to die. He also

invited our attention to the two medical reports, submitted by P.W.35

and P.W.19 and he invited our attention to the post-mortem report

given by P.W.36. He supported the judgment of the High Court.

We have considered the rival submissions made by learned

counsel for the parties and perused the record.

It is an admitted fact that the deceased was waylaid on March

24, 1996 by the accused party and in that as per the statement of

P.W.1, Malligamma, the wife of the deceased, A1, A-2 , A-6 & A-7

and A8, all these persons participated in beating the deceased. In

her statement, P.W.1 has deposed that on the fateful day when she

protested to her husband about the maltreatment given by Jayaraju,

her husband went to his younger brother's house and at about 4.00

P.M. when he was returning from his brother's house he was waylaid

by A-1, who was holding a chopper, A-2 who was holding an iron rod

and A-7 & A-8 armed with clubs and other accused persons were

having clubs or stones Near the house of Chairman,Dasanaik, A-1

gave the deceased a blow on the head. He hit her husband with

chopper on the head and other parts of the body. A-2, Mahadevanaik

beat her husband by iron rod on different parts of the body. She has

also categorically stated that A-2, Mahadevanaik beat her husband

on his left leg and left shoulder with the iron rod. She stated that she

immediately rushed to the rescue of her husband and placed herself

on him and tried to ward off the blows with her hand and that a blow

fell on her right hand and caused injuries to her wrist. She deposed

that while her husband fell down, he became unconscious and could

not speak. She has further deposed that meanwhile, Ponnanaika's

son Shankar came running to her rescue and he was also beaten by

clubs and stones and he fell down near the house of Ramanaika and

these accused beat him with clubs and stones. She also deposed

that other accused persons beat her husband who had fallen down,

with clubs and stones and left the place thinking him to be dead. It is

alleged that at about 7-8 P.M. police party came and they asked

about the incident and she narrated them the whole incident. They

reduced the same to a complaint and took her thumb impression.

Thereafter, her husband and Shankar were taken to Nanjagud

Hospital and there the doctor examined her husband and asked her

to take him to Mysore. Thereafter, her husband was taken to

K.R.Hospital, Mysore and at about 11 a.m. next morning he expired.

Another injured i.e. Shankar was admitted to a different ward. She

has identified the chopper and iron rod with which her husband was

assaulted. She was also cross-examined at length and she was

specifically confronted that she has not given all the names of the

accused persons in the F.I.R. to which she has explained that she

was dazed and therefore she could not furnish all the names. She

has very categorically stated that A-1, Papanaika was having the

chopper in his hand and A-2 was having iron rod and A-7 & A-8 were

armed with clubs. She has deposed that she has given all the names

of 17 persons in her complaint. Therefore, from her statement it is

clear that she has categorically deposed that she has identified A-1

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8

i.e. Papanaika and A-2, Mahadevanaika who were armed with

Chopper and iron rod respectively. She has also mentioned that A-7

& A-8 gave blows with the clubs. Of course later on she has tried to

develop that 17 persons tried to beat her husband. May be this was

her improved version but so far as the version with regard to A-1, A-2,

A-7 & A-8 is concerned, there is no doubt about their participating in

the incident.

P.W.2 \026Karigamma was also injured witness. His version more

or less supported the version of P.W.1. She deposed that when the

deceased Dasanaika was waylaid by the attacking party and A-1 hit

Dasanaika on different places on head with chopper in his hand, A-2

also hit Dasanaika with iron rod and A-3 to A-6 hit Dasanaika by

means of clubs and stones on his head. Other accused persons

assaulted by means of stones and clubs. It is alleged that after the

incident, A-1 & A-2 left their chopper and iron rod. She was also

cross-examined at length and she has supported the version given

out by P.W.1. P.W.4, Shankar is the nephew of the deceased. He has

also supported the version given out by P.Ws. 1 & 2. and he has

deposed that he saw A-1, Papanaika was holding a chopper, A-2 \026

Mahadevanaika was holding an iron rod, A-3 Puttamadanaika , A-4 \026

Chikkamadanaika @ Dore, A-6- Mahadevanaika and A-5

Chikkakalanaika were having clubs in their hands. He deposed that

A-1 gave a chopper blow on the head of his uncle and he fell down

and A-2 Mahadevanaika @ Mahadeva @ Chikkavanu gave a blow

with the iron rod and A-3 to A-6 gave blows by means of clubs in their

hands and other accused persons assaulted with the stones. He

deposed that he ran to the rescue of his uncle and at that time,

Papanaika shifted the chopper to his left hand and taking a stone in

his right hand threw the same towards him and it hit on the upper

portion of his forehead. At the same time, other accused persons also

hit him with stones which hit him on different parts of his body.

Sensing the danger he tried to run from the place but he fell down

near Ramanaika's house and became unconscious. He has also

identified the chopper as well as the iron rod. He has also recognized

the clubs which were in possession of A-3 to A-6. P,W.5 \026

Kempanaika has more or less supported the version given out by

P.Ws.1, 2 & 4. He has deposed that A-1 was having a chopper and

A-2 was having an iron rod and the remaining accused i.e. A-3 to 6

were armed with clubs and others were throwing stones. He has also

supported the version that P.W.1 fell on her husband to save him and

Shankara also came to rescue his uncle. But Shankara fell down and

became unconscious. He has also identified the chopper and iron

rod. Similar is the version of P.W.6 and P.W.7. Learned Additional

Sessions Judge believed all these witnesses and after appreciating

the evidence came to the conclusion that there is no inconsistency

between them so far as these six accused persons are concerned. A

major grievance of learned counsel for the defence was that all these

witnesses belong to the other factions and they are all relations and

there is litigations pending between the parties. Therefore, their

testimony should be discarded as a whole. Learned counsel for the

defence has also emphasized that A-1 also received injuries and the

houses of other factions were damaged and lastly he faintly

contended that there is also right of defence to property and he

ultimately submitted that this is a case of free fight and the other part

of the story has not been highlighted by the prosecution. It is true that

while appreciating the evidence of the prosecution witnesses utmost

care and caution has to be exercised by the trial court. This aspect

was very closely examined by learned Additional Sessions Judge

and therefore, he has acquitted all the remaining accused persons

except these six persons, against whom he found there is no

ambiguity about the version. We have also examined the evidence of

all these witnesses and we are of opinion that the appreciation of

evidence done by learned Additional Sessions Judge appears to be

correct and the Division Bench of the High Court came to the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8

conclusion without discussing the evidence of the prosecution

witnesses in detail and has erroneously disposed of the matter taking

into account that when prosecution witnesses have indulged in over

implication then what is the credibility of prosecution witnesses qua

other accused persons. Therefore, the High Court took an easy

approach in disbelieving all prosecution witnesses. This approach of

the High Court was not correct. It is common experience that

sometimes witnesses are prone to lapse of memory and sometimes

they overstate the facts but simply because the statements of the

witnesses are partly not trustworthy that does not mean that the

whole of the testimony of the witnesses should be discarded. After

going through the statements of P.W.1, the wife of the deceased and

P.W.4, Shankar, there cannot be any two opinion on the matter that

they are natural witnesses and they are close relations and they will

not wrongly depose so far as the real assailants are concerned.

Therefore, learned Additional Sessions Judge after appreciating the

evidence of the witnesses i.e. P.Ws.1 & 4 found that there is

consistent evidence against A-1 to A-6 and he has discarded the

evidence as against the other accused persons and acquitted them.

The approach of learned Additional Sessions Judge appears to be

correct, he scrutinized the evidence closely and he convicted these

six accused persons against whom there is sufficient evidence fully

corroborated by eye witnesses. He gave a benefit of doubt to others

where there was conflicting evidence with regard to role played by

them or their presence at the time of occurrence. He has relied on

the testimony of prosecution witnesses who have fully corroborated

the testimony of PW1 & PW4 by the other ocular witnesses like

P.Ws.2,3,5,6 & 7 as well as by medical evidence. Criminal

Courts while appreciating testimony of witnesses should not take

easy approach. Some exaggeration or embellishment can appear in

the testimony because of lapse of time or poor memory. Therefore,

wherever courts find sufficient corroboration then testimony of such

witnesses should be accepted. It is true that when the deceased was

taken to the hospital, all the injuries were not mentioned by the

doctors who treated him but the fact remains that in the post-mortem

report, all the injuries received by the deceased have been given in

detail and as such there is no reason to disbelieve that post-mortem

report. It is not the case of the prosecution that the post-mortem

report has not been properly prepared or there is any inconsistency

in the post-mortem report. In the post-mortem report it has been

mentioned that the deceased is said to have received 38 total

injuries, the doctor has noted 29 external injuries and on dissection

of the body of the deceased, he found 9 more injuries like fracture

of the parietal and occipital bones, fracture of both corneas of hyoid

bone, haematoma around the facture side, osterior dislocation of right

elbow joint, fracture of left ulna at the junction of middle and lower

1/3rd. The nature of injuries corresponds with the version given out

by the prosecution witnesses. As per the statements of P.Ws.1 & 4, it

is categorical that the deceased was given blow on the head by

chopper and these injuries correspond with parietal and occipital

regions and also injuries on various parts of the body which can be

caused by iron rod and clubs & stones. Therefore, these injuries

received by the deceased correspond with the version of the

prosecution witnesses. In this connection our attention was invited to

a decision of this Court in the case of Surinder Singh & Anr. V. State

of U.P. reported in (2003) 10 SCC 26. In the said case, Their

Lordships have observed as follows:

"An order of acquittal should not be lightly

interfered with. Though the appellate court has

full power to review the evidence upon which the

order of acquittal is founded, still while

exercising such an appellate power in a case of

acquittal, the appellate court should not only

consider every matter on record having a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8

bearing on the question of fact and the reasons

given by the courts below in support of its order

of acquittal, it must express its reasons in the

judgment which led it to hold that the acquittal is

not justified.

Thus, it is obligatory on the High Court

while reversing an order of acquittal to consider

and discuss each of the reasons given by the

trial court to acquit the accused and then to

dislodge those reasons. In the instant case, the

High Court has discharged the aforesaid

obligation as required and by careful analysis

demolished each one of the fundamentally weak

reasonings given by the trial court."

This Court has further observed with regard to the related witnesses

and observed as follows:

"Relationship is not a factor to affect the

credibility of a witness. It is more often than not

that a relation would not conceal the actual

culprit and make allegations against an innocent

person. Foundation has to be laid if a plea of

false implication is made. In such cases, the

court has to adopt a careful approach and

analyse the evidence to find out whether it is

cogent and credible. Hence, the ground that the

witness being a close relative and consequently

being a partisan witness, should not be relied

upon, has no substance."

On medical evidence also their Lordships observed that when there is

inconsistency between the ocular testimony and medical evidence,

then the ocular evidence should not be discarded unless it is found

that the medical evidence totally improbablises the ocular evidence.

Similarly, our attention was invited to a decision of this Court in the

case of Kalyan & Ors. v. State of U.P. reported in (2001) 9 SCC 632

wherein it has been observed as follows:

" The settled position of law on the

powers to be exercised by the High Court in an

appeal against an order of acquittal is that

though the High Court has full powers to review

the evidence upon which an order of acquittal is

passed, the principle of presumption of

innocence of the accused persons is also

equally well settled. Normally the views of the

trial court, as to the credibility of the witnesses,

must be given proper weight and consideration

because the trial court is supposed to have

watched the demeanour and conduct of the

witnesses and is in a better position to

appreciate their testimony. The High Court

should be slow in disturbing a finding of fact

arrived at by the trial court."

Similarly, our attention was invited to another decision of this Court in

the case of Wilayat Khan & Ors. v. The State of U.P reported in AIR

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8

1953 SC 122. In that case, it has been observed as follows:

" Even in appeals against acquittals, the

powers of the High Court are as wide as in

appeals from conviction. But there are two

points to be borne in mind in this connection.

One is that in an appeal from an acquittal, the

presumption of innocence of the accused

continues right up to the end; the second is that

great weight should be attached to the view

taken by the Sessions Judge before whom the

trial was held and who had the opportunity of

seeing and hearing the witnesses."

Therefore, from the ratio of the above decisions it is more than clear

that while the High Court has full power to interfere with the finding of

the trial court but the High Court should be very slow in reversing the

decision of the trial court because the trial court has the occasion to

watch the demeanour of the witnesses very closely. There is no two

opinion that the High Court has full power to re-appreciate the

evidence and come to a conclusion independently but the conclusion

which is arrived at by the High Court should be rational and proper

appreciation of the testimony of the witnesses. In the present case,

the High Court has not examined the statement of the witnesses and

just on a bald statement that when the prosecution version has been

accepted in full and the witnesses have tendency to over implicate,

then what is the guarantee that other part is also true. The Division

Bench has disbelieved the entire prosecution evidence. This

approach of the High Court, in our view, is not correct. There should

be proper appreciation of evidence and finding has to be recorded

against each witness as to why the said witness is not being believed

when he was believed by the trial court. On the contrary, we have

closely examined the evidence of the witnesses and after taking chaff

from the grain we found that so far as the statement of P.W.1, the

wife of the deceased and P.W.4, Shankar, the nephew of the

deceased, their testimony is trustworthy and there is no reason to

disbelieve these two witnesses leave apart other eye witnesses.

These two witnesses who were injured witnesses as they were

examined by the doctors and P.W.4, Shankar who received such

serious injuries that he became unconscious, therefore, the

testimony of these two witnesses is wholly reliable so far as these

accused persons are concerned and they have been corroborated by

other eye witnesses i.e. P.Ws.5,6 & 7and they have been supported

by the medical evidence also. We are of the view that the testimony

of these witnesses fully substantiate the prosecution case.

Now, coming to the question that the houses of the accused

persons were damaged and A-1 was also injured, these two factors

which have been pressed in to service by learned counsel for the

defence would be of no avail. When such an incident took place and

the accused persons were assaulting the deceased and P.W.1 and

P.W.4 came to rescue the deceased, in that some injuries might

have been received by A-1. That does not negate the prosecution

case, the injury on the person of A-1 cannot improbablise the whole

of the prosecution case. Some damage to the house of accused does

not cast any shadow of doubt on prosecution story.

As a result of the above discussion, we allow the State appeal,

set aside the order passed by the High Court in Criminal Appeal

No.962 of 1996 on April 3, 1998, acquitting the accused and affirm

the conviction and sentence passed by the IInd Additional Sessions

Judge, Mysore in S.C.No.46/1986. The accused persons who are on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8

bail, their bail bonds are cancelled and they shall surrender before

the trial court to serve out the remaining sentence within one month.

In case they fail to do so, the Superintendent of Police shall arrest

them and send them to jail to serve out the sentence.