B. VIRUPAKSHAIAH Vs. STATE OF KARNATAKA AND ORS
Section 302 - Punishment for murder
Section 147 - Punishment for rioting
Section 148 - Rioting, armed with deadly weapon
Section 120 - Concealing design to commit offence punishable with imprisonment
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)