Tags Murder

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 640 of 2012, Judgment Date: Feb 12, 2016

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 640 OF 2012

B. VIRUPAKSHAIAH                                                APPELLANT(S)

                                  :VERSUS:

STATE OF KARNATAKA AND ORS.                                    RESPONDENT(S)

                                    WITH



                       CRIMINAL APPEAL NO. 641 OF 2012

THE STATE OF KARNATAKA                                          APPELLANT(S)

                                  :VERSUS:


SRI MODIPALLI NARAYANA SWAMY AND
   ORS.                                                        RESPONDENT(S)


                               J U D G M E N T
Pinaki Chandra Ghose, J.
1.    These appeals, by  special  leave,  have  been  directed  against  the
judgment and order dated 19.01.2011, passed by the High Court of  Karnataka,
Circuit Bench at Dharwad, in Criminal Appeal No. 2664 of  2010  whereby  the
High Court allowed the appeal of all the twelve accused and  acquitted  them
of all charges. The present appeals are filed  against  the  said  acquittal
order passed by the High Court; Criminal Appeal No.640 of  2012  is  by  the
complainant, who is son of the deceased, and Criminal Appeal No.641 of  2012
is by the State.

2.    The facts of the case, as disclosed by the prosecution,  are  that  an
FIR was lodged on  22.11.2005,  at  Toranagallu  Police  Station  by  Sheikh
Hussain Sab (PW3), stating that he and his colleague  Basavana  Gouda  (PW2)
were working as Security Guards in Aqua Minerals Factory and when they  were
on duty on 22.11.2005, at about 1:30 PM, while  taking  food  they  heard  a
bang sound from outside and immediately they went out and saw that a  Bolero
Jeep had dashed against Tata Indica  Car  on  N.H.  63  in  front  of  Acqua
Minerals. They saw four unknown persons pulled out  two  inmates  of  Indica
Car and assaulted on their head, face and hand  with  sharp  edged  weapons,
causing heavy bleeding injuries. The four people  then  drove  away  towards
Bellary. One of the deceased named  Bhimaneni  Kondaiah  died  on  the  spot
whereas the other deceased Pavadappa died on way to the hospital.

3.    After investigation, charge-sheet was filed  against  twelve  accused.
After considering the material on record and hearing  the  counsel  for  the
accused persons, they were charged for offences  punishable  under  Sections
143, 147, 148, 341, 109, 120-B, 302 read  with Section  149  of  the  Indian
Penal Code, 1860 (hereinafter referred to as “IPC”). The charges  were  read
over and explained to them. All the accused persons pleaded not  guilty  and
claimed for trial.

4.    The Trial Court by its judgment and order dated  8.04.2010,  convicted
all the accused for hatching a conspiracy and therefore, in  furtherance  of
the conspiracy, for killing the deceased and his driver and  sentenced  them
to life imprisonment. Various other shorter  sentences  for  other  offences
were also imposed by the Trial  Court.  The  conviction  was  based  on  the
testimonies  of  the  six   eye  witnesses,  corroborated  by  the  recovery
evidences and the testimonies of other witnesses who  proved  the  existence
of a conspiracy planned between the twelve accused. The motive  believed  by
the Trial Court was to avenge the death of four relatives  of  the  accused,
six  months  ago  which  was  believed  to  be  committed  by  the  deceased
Bheemaneni Kondaiah and his men. Aggrieved by the Trial Court  judgment  and
order, the convicted respondents filed appeal before the High  Court,  which
was allowed on the ground that there is absence of  proof  of  wrongness  on
the part of the accused and also certainty of the guilt of the  accused  and
as such, they were entitled to the benefit of doubt. Accordingly,  the  High
Court by the impugned judgment  set  aside  the  judgment  and  order  dated
8.04.2010 passed by the Trial Court and acquitted the  accused  of  all  the
charges.

5.    Mr. Manan Kumar Mishra, learned senior counsel appearing on behalf  of
the complainant, has made various submissions on  the  basis  of  the  Trial
Court judgment. His main contention is that  the  testimonies  of  the  eye-
witnesses, wherein PW1, PW4,  PW5  and  PW6  have  specifically  stated  the
number of persons present as well as the individual act  committed  by  each
of the accused/ respondents in the  incident,  are  clinching  evidence  and
cannot be brushed aside. Further, the recovery of the weapon  used  and  the
Indica Car involved in the incident cannot be  overlooked.  Over  and  above
this, the learned senior counsel contended that the  evidence  of  existence
of conspiracy has been established by individual witnesses.

6.    Mr. Pradip Kumar Ghosh, learned senior counsel appearing on behalf  of
the accused/ respondents made various submissions countering  the  arguments
put  forward  by  the  appellant.  The  material  alterations  between   the
testimonies of the eye-witnesses were pointed out to prove  that  PW1,  PW4,
PW5 and PW6 were not material eye-witnesses and that they  have  either  not
seen the incident or they came to the spot after the incident had  occurred.
The conduct of the eye-witnesses  was  argued  to  be  unnatural  and  their
silence in not making any statement to the police officers at the  earliest,
casts doubt in  their  testimonies.  Many  of  the  witnesses  to  recovery,
produced by the prosecution,  turned  hostile  and  even  the  Investigating
Officer could not identify the  recovered  articles.  Finally,  the  learned
senior counsel appearing on behalf of  the  accused/  respondents  contended
that there  is  no  iota  of  evidence  to  prove  that  there  existed  any
conspiracy at any point of time  and  the  evidence  to  prove  the  alleged
conspiracy are not cogent.

7.    In our considered opinion, the prosecution case  revolves  around  the
testimonies of the  eye-witnesses,  the  existence  of  conspiracy  and  the
recovery of the alleged weapons. The prosecution produced  71  witnesses  in
total, of which 6 were stated to be eye-witnesses. However,  on  perusal  of
the material on record, only PW2 and PW3 seem to  be  the  chance  witnesses
who were in close proximity to the place of incident due to  their  job.  In
their statements to the police, they deposed that four unknown persons  came
out of a big jeep, dragged and assaulted the two  occupants  of  the  Indica
Car. However, in their statements  before  the  Court,  both  made  material
additions and stated that there were  eight  assailants,  but  none  of  the
witnesses could identify  the  accused  as  PW3  claimed  that  he  saw  the
assailants from a long distance; he also deposed that it  was  a  jeep.  PW2
was left blind because of an eye-surgery one year  prior  to  his  testimony
and as such could not identify the  accused.  However,  he  did  state  that
there were eight unnamed assailants which is a material  addition  from  his
statement before the police. PW1, PW4, PW5 and PW6 are other  eye-witnesses,
but this Court cannot repose faith on any of them. Thus, there are  material
alterations in their statements from the testimonies of  PW2  and  PW3,  and
even with the deposition of PW71 i.e. the Investigating Officer.  All  these
four witnesses kept quiet for a long time after the  incident  and  did  not
state the incident to any other person or even to the police.  PW1  and  PW5
deposed in similar terms that there was a huge gathering  of  about  100-200
people and many cars had stopped due to the accident. PW4  and  PW6  deposed
in similar terms that about 25 people had gathered there.  PW6  even  stated
that  he  did  not  know  the  assailants.  There  exists   grave   material
alterations between the testimonies of these witnesses and despite the  fact
that they happened to be around police official  soon  after  the  incident,
nothing was stated by them about the  incident  to  the  police.  Even  PW71
deposed that the National Highway was not blocked due to  the  incident  and
when he reached the spot, there was no jam or huge gathering of people.

8.    The next evidence, which is pivotal to the prosecution case,  was  the
recovery of weapons and  other  articles.  The  High  Court  has  thoroughly
considered these recoveries and has rightly  disbelieved  them.  Though  the
Forensic Science Laboratory Report was to be filed, it will not come to  the
aid  of  the  prosecution  as  the  recovery  was  not  established  by  the
prosecution. Even the number of the assailants was doubtful ever  since  the
beginning. This lacuna in the investigation goes on to hit the root  of  the
prosecution case. PW61, PW65 and PW67, who were attesting witnesses  to  the
recovery of articles, like weapons, clothes, etc., turned hostile.

9.    The next aspect for our consideration is the alleged conspiracy.   But
as pointed out by the High  Court,  there  exists  no  cogent  and  positive
evidence  to  prove  the  conspiracy.  Proof  of  conspiracy   is   strictly
conditional upon there being reasonable grounds to believe that two or  more
persons had conspired together to commit an offence. In  the  present  case,
the cultivators of the respondents were examined to prove that  the  accused
respondents had prior plans to  leave  their  place  of  cultivation.  Other
witnesses were produced to testify the meeting in which the  conspiracy  was
planned, but PW17 and PW23 did not state specifically as to what  conspiracy
was being hatched. PW 46,  PW47  and  PW48  did  specify  the  existence  of
conspiracy, but in their  cross-examination,  their  conduct  was  seriously
doubted. They did not make any statement to the police to  this  effect  and
it was admitted by PW48 that the fact of conspiracy was told to him by  PW46
three months prior to the incident.  But PW48 kept  quiet  even  though  the
deceased was his uncle. However, these evidences fail to hold  any  veracity
as it seems unnatural and the hostility of these witnesses was  specifically
made out in the cross-examination.

10.   Apart from the above pivotal facts, the High  Court  has  pointed  out
other serious lacunae in the prosecution case. The recovery  of  the  mobile
phone was relied upon in evidence.  However, no  evidence  was  produced  to
link the said mobile to any of the accused. The recovery of the said  mobile
is already stated to be not supported  by  evidence.  The  recovery  of  the
weapon is not established since the witness for the seizure  Panchnama  have
turned hostile.

11.   Thus, in the light of the above discussion, we find no compelling  and
substantial reasons to interfere with the impugned judgment  passed  by  the
High Court. The appeals are, accordingly, dismissed.



                                      …....................................J
                                                      (Pinaki Chandra Ghose)



                                       …...................................J
                                                               (R.K. Agrawal)
New Delhi;
February 12, 2016.
ITEM NO.1B               COURT NO.10               SECTION IIB
(For Judgment)
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

                      Criminal Appeal  No(s).  640/2012

B. VIRUPAKSHAIAH                                   Appellant(s)

                                VERSUS

STATE OF KARNATAKA AND ORS                         Respondent(s)

WITH
Crl.A. No. 641/2012

Date : 12/02/2016      These appeals were called on for pronouncement
            of judgment today.

For Appellant(s) Mr. S. N. Bhat, AOR

                       Ms. Anitha Shenoy, AOR

For Respondent(s)      Ms. Anitha Shenoy, AOR

                       Mr. N.D.B. Raju, Adv.
                       Mr. N. Ganpathy, AOR

                       Mr. S. Sadasiva Reddy, Adv.
                       Mrs. S. Usha Reddy, AOR


                                            *****

      Hon'ble Mr. Justice Pinaki Chandra  Ghose  pronounced  the  reportable
judgment of the Bench comprising His Lordship and Hon'ble Mr.  Justice  R.K.
Agrawal.
      The appeals are dismissed in terms of the signed reportable judgment.


      (R.NATARAJAN)                                   (MADHU NARULA)
       Court Master                                    Court Master
            (Signed reportable judgment is placed on the file)