STATE OF BIHAR AND ORS. Vs. SODHAN DAIBAGANS AND ANR.

Tags Acquittal

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

Appeal (Crl.), 1611 of 2009, Judgment Date: Jul 01, 2015

Non-Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1611 of 2009

State of Karnataka …. Appellant

Versus

Sateesh & Others ....Respondents

J U D G M E N T

Uday Umesh Lalit, J.

1. This appeal by special leave is directed against the judgment and
order dated 22.01.2009 passed by the High Court of Karnataka at
Bangalore allowing Criminal Appeal No. 1696/2005 preferred by the
respondents herein and setting aside their conviction as recorded by
the trial court and acquitting them of all the charges leveled against
them.

2. On 06.09.2000, PW15 M.N. Somashekharaih, then working as ASI in Kota
Police Station, reached the Police Station at 6.55 a.m. and was
informed by Head Constable-37 that PW7 Jagadamba, daughter of
Shivarudraiah of Mavukere village had informed on telephone that
persons of Nayaka community had smashed her father with stones and
were attacking the police personnel. PW15 instructed that an
ambulance be sent to Mavukere village and left along with some police
personnel for Mavukere. According to PW15 when he reached the spot at
about 7.15 a.m. he saw Shivarudraiah having received serious injuries
on his head, hand and legs and was writhing in pain and shouting “Ayo
Ayo”. He made arrangements to send said Shivarudraiah for medical
attention to hospital at Tumkur. According to him, out of two
constables, namely Jayaram and Rajanna, one had received injuries and
PW15 made inquiries with them. His superior reached the spot at
about 9.30 a.m. and therefore said PW15 left for the Police Station.

3. At about 10.00 a.m., PW1 Siddaramaiah came to the Police Station with
a written complaint which was registered as First Information Report,
on the basis of which Crime No.135 of 2000 came to be lodged. The
relevant assertions in the written complaint were as under:
“About one month ago, there was a quarrel in our village with
regard to 5 acres land in Sy. No.135/1 and 129 between the
members of Naik community, Uppara community and Lingayat
community. In respect of the same, on 5.8.2000 Shekhar and
others belonging to Naik community quarreled with us. With
regard to this enmity has arisen between us and members of Naik
community and petty quarrels were taking place from time to
time. In these circumstances on 06.09.2000 morning at
6.00a.m., I was standing on his cycle towards his land and came
on the road opposite the house of Shivaramaiah, s/o Nanjundaiah
and at that time residents of our village viz. (1) Sateesh, s/o
Siddagangaiah (2) Siddaiah, s/o Sunnarangaiah (3) Lakshmaiah,
s/o Sunnarangaiah (4) Suresh, s/o Late Chikkarangaiah (5)
Shekaraiah, s/o Late Chikkarangaiah (6) Nanjaiah, s/o Late
Chikkarangaiah (7) Shanakariah, s/o Late Chikkarangaiah (8)
Kaluvaiah, s/o Late Chikkarangaiah (9) Shankaraiah, s/o Late
Chikkarangaiah (10) Nanjundaih, s/o Late Chikkarangaiah (11)
Manjukumar, s/o Kaluvaiah, (12) HMT Shivanna, s/o Nanjundaiah
(13) Ramesh, s/o Nanjundaiah (14) Jagadish, s/o Shivananjaiah
(15) Manjunath, s/o Shivananjaiah (16) Jayaramaiah, s/o
Ramakrishnaiah (17) Shrirangaiah, s/o Puttiah (18)
Rangandhamaiah, s/o Lakshmirangaiah (19) Nanjaiah, s/o
Nanjundaiah (20) Ishwariah, s/o Nanjundaiah, all had formed
unlawful assembly and were armed with clubs in their hands
passed me on the road and unlawfully obstructed Shivarudraiah
who was coming on the cycle. They stopped him and Shekhar
pushed the cycle down and as soon as Shivarudraiah fell on the
ground, Suresh, s/o Late Chikkaraingaiah said that, “one of the
two has to happen today, we will finish this fellow”. As soon
as he uttered this, all of them made Shivarudraiah sit on the
ground, held his hands and legs and made him sleep on the
ground. They placed his legs on a flat stone and smashed his
legs with size stones (boundary marker stones) (Talakuttu).
Shivarudraiah started screaming. They did not leave him and
some of them relentlessly started beating Shivarudraiah with the
clubs held by them in their hands. Hearing the screaming,
Shivarudraiah’s wife came running and embraced her husband.
They pulled parvatamma and pushed her aside. Later they
repeatedly kicked him with their legs. At that time, I screamed
saying that, “they are going to kill Shivarudraiah”. They saw
people coming from the village side and threw away the clubs
which they were holding in their hands there itself and ran
away. Myself, Parvatamma and Jagadamma lifted Shivarudraiah.
His left leg was smashed and was bleeding. There were open
wounds on the right side of the head, right hand, forearm, left
knee, right feet and left leg and blood was oozing out. This
incident was witnessed by Chandrashekaraiah, s/o Gurulingaiah,
Nanjegowda, s/o Shivanna, Narasimhaiah, s/o Chikkappa by
standing in their respective lands. All of them were afraid of
the members of the Naik community and did not come forward to
help.”

4. Shivarudraiah was admitted to Tumkur district hospital for
treatment and while undergoing treatment, he died at 10.25 a.m. on
06.09.2000. Post Mortem was conducted by PW19 Dr. K.G. Shivamurthy on
the dead body of Shivarudraiah at District hospital, Tumkur. Post
Mortem revealed following injuries:-
“1. Lacerated wound of 3”x1” present over the frontal region.

2. An aberration of 1/½”x1” present over the anterior middle of the
nose.

3. Lacerated wound of 1/½”x1” present over the back of the right
elbow.

4. Lacerated wound of 3”x1” present in between right index finger
and thumb extending to the palmer aspect with bone deep.

5. Contusion of 4”x3” present over the left wrist and dislocation
of the proximal phalanx of the index and middle finger.

6. There is fracture of the right upper 1/3 of the tibia and
fibula.

7. Contusion of 2½” x1” present over the anterior aspect of the
right knee.

8. Lacerated wound of 4”x5” present over the deep of the right
foot. In between 4th and 5th tow and there is dislocation of
the 4th and 5th metatarsal joints.

9. There is fracture of the lower 1/3 of the left labia and fibula.

10. Lacerated wound 6”x2” present over the middle border of the
left foot and bone deep.

11. Lacerated wound of 3”x2” present over the dorsum of the left
foot.

12. Lacerated wound of 2½”x2” present in between the left 3rd and
4th toe.

13. Contusion of 1”x3” present over the right zygote of the acetyl
region.

14. Lacerated wound of 2”x1” and skull bone deep present over the
occipital region.”

The cause of death was said to be hemorrhage resulting
from aforesaid injuries.

5. During investigation statement of PW2 Savitha, daughter of
Shivarudraiah was recorded on 07.09.2000, while that of PW13
Parwathamma wife of Shivarudraiah was recorded two days after the
incident. After due investigation 19 persons were sent for trial
vide S.C. No. 71/2000 before the Fast Track Court No.III at Tumkur.

6. The prosecution principally relied on the testimony of PW1
Siddaramaiah, PW2 Savitha and PW13 Parwathamma who were stated to be
eye-witnesses to the incident while other daughter of Shivarudraiah,
namely, PW7 Jagadamba, PW3 Nanjegouda and PW4 M.G. Chandrashekaraiah
were the witnesses who had arrived at the scene of occurrence soon
after the incident. PW1 Siddaramaiah accepted that names of
Manjukumar and Shrirangaiah, s/o Puttiah were wrongly mentioned in the
FIR. Though it was not so asserted in the FIR, PW1 in his oral
testimony stated that accused Manjunath had assaulted Shivarudraiah
with a sickle. PW2 Savitha stated that she was accompanying her
father Shivarudraiah on the relevant day when they were proceeding
from their house to go to their farm land. According to her she
started screaming soon after the assault began. PW13 Parvatamma
deposed that shouts and screams of her daughter attracted her
attention and she came running from the house and saw the assault.
According to the witness she had tried to intervene and as a result
had received simple injuries and had tried to cover her bleeding
husband.

7. The trial court while accepting the case of the prosecution came
to the conclusion that the case against the respondents was fully
proved. However, giving benefit of doubt to original accused Nos.12
and 13, it acquitted them of all the offences alleged against them.
It convicted and sentenced original accused Nos.1 to 11, 14 to 19
under Sections 148, 341, 302 read with 149 IPC sentencing them to
undergo sentences including the imprisonment for life. Accused Nos. 4
to 6 were also additionally convicted and sentenced under Sections 114
read with 302 IPC while original accused No.16 was further convicted
and sentenced for the offences under Section 324 IPC read with 506
IPC. Thus, out of 19 persons who were tried, 17 accused stood
convicted by the Trial Court vide its judgment and order dated
21.07.2005.

8. The convicted accused i.e. the respondents herein carried the
matter further by filing Criminal Appeal No.1656 of 2005 in the High
Court. The High Court found the conduct of PW15 unexplainable in that
he had chosen not to record the statements of two police constables
who were present at the site and one of them was injured and also had
chosen not to ask questions to injured Shivarudraiah. The High Court
further found it completely unexplainable that PW15 had not made any
inquiry in the village itself. The ultimate registration of crime on
the basis of a written FIR which was scribed by PW11 and brought to
the Police Station by PW1 was not found to be bona fide. The High
Court observed that there was unexplained delay in registering the
crime and it was extremely doubtful whether PW1 was an eye witness to
the occurrence. It further observed that in the original FIR, the
name of PW2 Savitha was not mentioned at all, creating doubts
regarding her presence. Furthermore, if PW13 had tried to cover her
bleeding husband, her blood stained sari should have been produced on
record. Her statement was also recorded two days after the incident,
again creating a situation of doubt. With these reasons, the High
Court observed that the possibility of innocents being implicated in
the matter could not be ruled out. Giving benefit of doubt to the
convicted accused the High Court thus acquitted all of them of the
offences alleged against them. The State being aggrieved has
approached this Court by filing this appeal by special leave.

9. Appearing in support of the appeal, Mr. Parikshit P. Angadi,
learned Advocate submitted that three eye witnesses, namely, PWs 1,
2 and 13 were completely consistent in their assertions about the
involvement of the respondents herein and that the FIR having been
lodged at 10.30a.m. there was absolutely no delay in registration of
crime and that the reasons which weighed with the High Court were
completely incorrect. Appearing for the respondents, Mr. Rajesh
Mahale, learned Advocate submitted that if PW15 was present in the
village immediately after the incident, it does not stand to reason
why he did not make any inquiry and register the crime. If two
constables were present in the village, one of them being injured,
that source was a better one to gather information and register the
crime. Furthermore, the place of occurrence being surrounded by
various houses in the village, none of the inmates of those houses was
examined as witness. In his submission, the reasons given by the High
Court while acquitting the respondents were absolutely correct and in
any case was a possible view in the matter.

10. We have gone though the record carefully and considered the
submissions. The testimony of PW15 reveals that a telephone call was
received in the police station from PW7 Jagadamba about the incident
of assault. Having reached the village by 7.15 a.m., it was logically
expected of him to start making inquires about the crime and the
identity of alleged assailants. Additionally, if out of two
constables present in the village, one of them was injured, this by
itself was one good source of information. According to the
witness, he had spoken to those two constables and yet no steps were
taken to register the crime. The witness further accepted that he had
seen Shivarudraiah writhing in pain. In the circumstances, it would
also be expected of him either to ask him or accompany him to the
hospital, he being primary source of information. The conduct in the
matter exhibited by PW15 is completely unexplainable. Similarly, it
also does not stand to reason why PW1 Siddaramaiah did not approach
the police when they were present in the village soon after the
transaction and chose to make a written complaint scribed by PW11 and
thereafter lodge it in the police station 10 kms. away. He himself
later accepted that in the complaint, he had added two names by
mistake. Secondly, the attribution to one of the accused having given
blow by a sickle was also not mentioned in the complaint. The
injuries found in the post mortem also do not support such assertion
about injury by a sickle. In the circumstances, the assessment made
by the High Court expressing serious doubts whether the PW1.
Siddaramaiah was eye witness to the occurrence, in our opinion, is
definitely a possible view. The presence of PW2 Savitha as well as
PW13 Parwathamma is also doubtful for the reasons mentioned by the
High Court.

11. Having analyzed the facts on record, the reasons stated by the
High Court while acquitting the respondent are quite possible from the
evidence on record. While considering this appeal against acquittal,
the view expressed by the High Court being a possible view, we do not
see any reason to interfere in the matter. We, thus, affirm the
judgment and order of acquittal passed by the High Court and dismiss
the present appeal.

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

………………………..J.
(Uday Umesh Lalit)
New Delhi,
July 01, 2015

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