1 - - R IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE22D DAY OF DECEMBER, 2020 PRESENT THE HON’BLE MR.JUSTICE B.A.PATIL AND THE HON’BLE MR.JUSTICE M.I.ARUN CRIMINAL APPEAL No.100346/2016 C/W CRIMINAL APPEAL No.100024/2017 CRIMINAL APPEAL No.100194/2018 CRIMINAL APPEAL No.100283/2016 CRIMINAL APPEAL No.100127/2017 IN CRIMINAL APPEAL No.100346/2016: BETWEEN: Sri Pampapathi S/o Dodda Basappa Aged about 45 years Occ: Agriculture R/o Moka Hobli, K.K.Haal Village Ballari Taluk & District. …Appellant (By Sri C.V.Nagesh, Senior Counsel for Sri Srinand A. Pachhapure, Advocate) AND: The State of Karnataka through Deputy Superintendent of Police H & B Squad, C.O.D. Bengaluru, 2 - - Now Represented by Special Public Prosecutor High Court of Karnataka Dharwad Bench at Dharwad. …Respondent (By Sri L.S.Sullad, Special Public Prosecutor) This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the judgment of conviction dated 4.8.2016 and order of sentence dated 8.8.2016 passed by the 1st Addl. District and Sessions Judge, Ballari, in S.C.No.56/2008 for the offences punishable under Sections 143, 147, 148, 120B, 114, 452, 324, 325, 326, 307 and 302 r/w Section 149 of Indian Penal Code. IN CRIMINAL APPEAL No.100024/2017: BETWEEN: Sri Sadakali S/o Lingappa Aged about 28 years Occ: Agriculture R/o Kallukutiganahal (K.K.Haal) Ballari Taluk & District. …Appellant (By Sri C.V.Nagesh, Senior Counsel for Sri S.S.Yadrami, Advocate) AND: The State of Karnataka by C.O.D. Police, H and B Squad, Bengaluru, Represented by Special Public Prosecutor, High Court of Karnataka, Dharwad Bench. …Respondent (By Sri L.S.Sullad, Special Public Prosecutor) 3 - - This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the judgment and Order of conviction & sentence dated 4.8.2016/8.8.2016 passed by the 1st Addl. District and Sessions Judge, Ballari, in S.C.No.56/2008 for the offences punishable under Sections 143, 147, 148, 324, 325, 326, 452, 307, 302, 120B and 114 r/w Section 149 of Indian Penal Code. IN CRIMINAL APPEAL No.100194/2018: BETWEEN: Sri Ramanjini S/o Lingappa Aged about 32 years Occ: Agriculture R/o Kallukutiganahal (K.K.Haal) Ballari Taluk & District. …Appellant (By Sri C.V.Nagesh, Senior Counsel for Sri S.S.Yadrami, Advocate) AND: The State of Karnataka by C.O.D. Police, H and B Squad, Bengaluru, Represented by Special Public Prosecutor High Court of Karnataka Dharwad Bench. …Respondent (By Sri L.S.Sullad, Special Public Prosecutor) This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the judgment and Order of conviction & sentence dated 4.8.2016/8.8.2016 passed by the 1st Addl. District and Sessions Judge, Ballari, in S.C.No.56/2008 for the offences punishable under Sections 143, 147, 148, 324, 325, 326, 448, 452, 114, 120B, 307 and 302 r/w Section 149 of Indian Penal Code. 4 - - IN CRIMINAL APPEAL No.100283/2016: BETWEEN:
1. Durgappa S/o Kallappa Aged about 60 years Occ: Agriculture R/o Moka Hobli, K.K.Hal Village Ballari Taluk & District.
2. Kaggal Venkatesh S/o Eranna Aged about 33 years Occ: Agriculture R/o Moka Hobli, K.K.Hal Village Ballari Taluk & District.
3. Marenna S/o Kari Sunkanna Aged about 43 years Occ: Agriculture R/o Moka Hobli, K.K.Hal Village Ballari Taluk & District.
4. Ganesh S/o Kadappa Aged about 26 years Occ: Agriculture R/o Moka Hobli, K.K.Hal Village Ballari Taluk & District.
5. Tayappa S/o Hanamappa Aged about 74 years Occ: Agriculture R/o Moka Hobli, K.K.Hal Village Ballari Taluk & District.
6. Durgappa S/o Dodda Sunkanna Aged about 56 years Occ: Agriculture 5 - - R/o Moka Hobli, K.K.Hal Village Ballari Taluk & District.
7. Kallappa S/o Hotte Durgappa Aged about 38 years Occ: Agriculture R/o Moka Hobli, K.K.Hal Village Ballari Taluk & District.
8. Chandra S/o Dodda Basappa Aged about 36 years Occ: Agriculture R/o Moka Hobli, K.K.Hal Village Ballari Taluk & District.
9. Dodda Basappa S/o Gurukalingappa Aged about 53 years Occ: Agriculture R/o Moka Hobli, K.K.Hal Village Ballari Taluk & District.
10. Nandihalli Mallaiah @ Mallappa S/o Honnurappa Aged about 58 years Occ: Agriculture R/o Moka Hobli, K.K.Hal Village Ballari Taluk & District.
11. Kadappa S/o Hanumappa Aged about 60 years Occ: Agriculture R/o Moka Hobli, K.K.Hal Village Ballari Taluk & District.
12. Eranna S/o Kadappa Aged about 28 years Occ: Agriculture R/o Moka Hobli, K.K.Hal Village 6 - - Ballari Taluk & District.
13. Gadilingappa S/o Parasappa Aged about 40 years Occ: Agriculture R/o Moka Hobli, K.K.Hal Village Ballari Taluk & District.
14. Mallaiah S/o Hanumappa Aged about 46 years Occ: Agriculture R/o Moka Hobli, K.K.Hal Village Ballari Taluk & District.
15. Ramu S/o Member Durgappa Aged about 27 years Occ: Agriculture R/o Moka Hobli, K.K.Hal Village Ballari Taluk & District.
16. Gadilingappa S/o Dodda Sunkanna Aged about 46 years Occ: Agriculture R/o Moka Hobli, K.K.Hal Village Ballari Taluk & District.
17. Gadilingappa S/o Gurukalingappa Aged about 44 years Occ: Agriculture R/o Moka Hobli, K.K.Hal Village Ballari Taluk & District.
18. Dhanunjaya S/o late Sunkanna Aged about 27 years Occ: Agriculture R/o Moka Hobli, K.K.Hal Village Ballari Taluk & District. 7 - - 19. Sunkanna S/o Gadilingappa Aged about 27 years Occ: Agriculture R/o Moka Hobli, K.K.Hal Village Ballari Taluk & District.
20. Linganna S/o Hamali Thimmappa Aged about 27 years Occ: Agriculture R/o Moka Hobli, K.K.Hal Village Ballari Taluk & District.
21. Somalinga S/o Moka Pompanna Aged about 30 years Occ: Agriculture R/o Moka Hobli, K.K.Hal Village Ballari Taluk & District. …Appellants (By Sri C.V.Nagesh, Senior Counsel for Sri S.H.Mittalkod, Advocate) AND: State of Karnataka through Moka Police Station, Ballari, Represented by Special Public Prosecutor High Court of Karnataka Dharwad Bench, Dharwad. …Respondent (By Sri L.S.Sullad, Special Public Prosecutor) This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the entire judgment of conviction and order of sentence passed against the applicants in S.C.No.56/2008 for the offences punishable under Sections 143, 147, 148, 120B, 114, 452, 324, 325, 326, 307 and 302 r/w Section 149 of Indian Penal Code. 8 - - IN CRIMINAL APPEAL No.100127/2017: BETWEEN: State of Karnataka Represented by the Deputy Superintendent of Police H & B Squad, C.O.D., Bengaluru, Through the Addl. State Public Prosecutor Advocate General Office High Court of Karnataka Dharwad Bench. …Appellant (By Sri L.S.Sullad, Special Public Prosecutor) AND:
1. Durgappa Kallappa Aged about 52 years 2. Ramanjini S/o Lingappa Aged about 22 years 3. Kaggal Venkatesh S/o Eranna Aged about 25 years 4. Marenna S/o Kari Sunkanna Aged about 35 years 5. Ganesh S/o Kadappa Aged about 18 years 6. Tayappa S/o Hanamappa Aged about 66 years 7. Pompapathi S/o Dodda Basappa Aged about 37 years 9 - - 8. Durgappa S/o Dodda Sunkanna Aged about 48 years 9. Kallappa S/o Hotte Durgappa Aged about 30 years 10. Chandra S/o Dodda Basappa Aged about 28 years 11. Dodda Basappa S/o Gurukalingappa Aged about 45 years 12. Nandihalli Mallaiah @ Mallappa S/o Honnurappa Aged about 50 years 13. Kadappa S/o Hanumappa Aged about 52 years 14. Eranna S/o Kadappa Aged about 20 years 15. Sadakali S/o Lingappa Aged about 22 years 16. Gadilingappa Aged about 32 years 17. Mallaiah S/o Hanumappa Aged about 38 years 18. Ramu S/o Member Durgappa Aged about 19 years 19. Gadilingappa S/o Dodda Sunkanna Aged about 38 years 10 - - 20. Gadilingappa S/o Gurukalingappa Aged about 36 years 21. Dhanunjaya S/o late Sunkanna Aged about 19 years 22. Sunkanna S/o Gadilingappa Aged about 19 years 23. Linganna S/o Hamali Thimmappa Aged about 19 years 24. Somalingappa S/o Moka Pompanna Aged about 22 years All are agriculturists R/o. Moka Hobli, K.K.Haal Village Ballari Taluk & District. …Respondents (By Sri C.V.Nagesh, Senior Counsel for Sri Srinand A. Pachhapure, Advocate)) This Criminal Appeal is filed under Section 377 of Cr.P.C praying to set aside the imposition of life imprisonment and to sentence the respondents/ accused in S.C.No.56/2008 with death sentence as provided under Section 302 of Indian Penal Code. These Criminal Appeals having been heard and reserved on 09.10.2020 coming on for pronouncement of Judgment, this day, B.A.PATIL. J., delivered the following:- 11 - -
JUDGMENTCriminal Appeal No.100346/2016 has been preferred by accused No.8, Criminal Appeal No.100024/2017 has been preferred by accused No.17, Criminal Appeal No.100194/2018 has been preferred by accused No.2, Criminal Appeal No.100283/2016 has been preferred by accused Nos.1, 4 to 7, 9 to 12, 14 to 16 and 18 to 26 challenging the legality and correctness of the conviction and order of sentence passed by I Additional District and Sessions Judge, Bellary, in S.C.No.56/2008 dated 4.8.2016/8.8.2016. Challenging the quantum of sentence, State has also preferred the appeal in Criminal Appeal in Criminal Appeal No.100127/2017.
2. We have heard the learned Senior Counsel Sri.C.V.Nagesh on behalf of all the accused persons along with the counsels appearing for the appellants-accused and the learned Special Public Prosecutor Sri.L.S.Sullad for the respondent-State. 12 - - 3. The brief facts of the case as averred in the complaint are that a galata took place between Lingayath community people and Nayak community people in respect of taking of canal water, a criminal case has been registered, subsequently the persons belonging to Lingayath community were released on bail. Being unsatisfied about their release on bail and because of previous animosity to kill the prominent Lingayath community people, accused persons hatched a plan and conspired in the house of accused No.12 Doddabasappa and in pursuance of the conspiracy, by constituting an unlawful assembly by holding deadly weapons accused Nos.1 to 16 came to the house of complainant on 9.11.2007 at about 7.30 p.m., accused Nos.1 to 7, 10, 11, 13, 14, 24 and 26 trespassed into the house of complainant, accused No.1 Durgappa assaulted Nagaraja Gouda with chopper, accused No.2 Rama assaulted Nagaraja Gouda with axe, accused No.3 Parsappa assaulted Nagaraja Gouda with chopper, accused No.11 13 - - Chandra snatched chopper from the hands of accused No.1 and assaulted Nagaraja Gouda, accused No.10 Kallappa took the chopper from the hands of accused No.3 and assaulted Nagaraja Gouda, accused No.26 Sunkanna assaulted Nagaraja Gouda with cart-peg, accused No.13 Eranna assaulted Nagaraja Gouda with axe on his head, shoulder, hands, legs and caused grievous injuries. When the complainant Radhamma went to rescue, at that time, accused No.4 Kaggal Venkatesh and accused No.11 Chandra assaulted her on both the hands with chopper, they also assaulted on her left leg. As a result of the same her ring finger was injured. It is further alleged that, accused Nos.1 to 7, 10, 11, 13, 24 and 26 trespassed into the house of Siddaramana Gouda. Accused No.26 Sunkanna assaulted Siddaramana Gouda with cart-peg, accused No.7 Ganesha snatched axe from the hands of accused No.5 and assaulted Siddaramana Gouda, accused No.7 Jayappa snatched chopper from the hands of accused No.14 and assaulted Siddaramana Gouda, accused No.11 14 - - Chandra snatched chopper from the hands of accused No.8 and assaulted Siddaramana Gouda, accused No.26 and accused No.4 Kaggal Venkatesha assaulted Siddaramana Gouda on his face, hands, shoulder and other parts of the body. When CW2 Shivagangamma came for rescue, at that time, accused No.6 Ganesha assaulted with axe, accused No.24 Sunkanna assaulted with cart-peg, accused No.13 Eranna assaulted with axe by snatching the same from the hands of accused No.7 on both the hands and shoulder. Accused Nos.8, 9, 12, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 25 were watching outside to see that others should not come to rescue of the victims and were also instigating the accused to finish of them. On the basis of the complaint, a case has been registered, thereafter after investigation the charge sheet has been filed.
4. It is the submission of the learned Senior Counsel that though there are no serious overt acts alleged as against all the accused persons, the trial Court without properly appreciating the evidence has come to a wrong 15 - - conclusion and has wrongly convicted all the accused persons for the alleged offences. It is his further submission that the recovery of incriminating material at the instance of the accused persons has not been proved by the prosecution since the recovery mahazar witnesses have not supported the case of the prosecution and they have been treated as hostile. It is his alternative submission that the said articles have been seized from the house, normally nobody will keep the weapons in the house by the side of the door to an accessible place. It is his further submission that the evidence clearly goes to show that the police were already knowing about the weapons and already they were present. Under such circumstances, it cannot be held that it is within the exclusively knowledge of the accused and the same has been recovered. It is his further submission that the FSL report and mahazar drawn does not state the fact that the said weapons which have been seized were stained with blood. Under such circumstances, it creates a doubt about 16 - - the use of the said weapons for the purpose of commission of the alleged crime. It is his further submission that there is no corroboration to the weapons recovered and the evidence of medical officer. In his evidence he has not stated that the injuries found over the bodies of the deceased and the injured persons are likely to be caused with the weapon like chopper and cart-peg. It is his further submission that grouping of the blood on the weapons and clothes of the deceased as well as the deceased has not been made. Under such circumstances, the recovery is not proved in this behalf. It is his further submission that the original documents have not been got marked in the present case on hand and the recovery is tainted recovery.
5. It is his further submission that the eyewitnesses put-forth by the prosecution are not the real eyewitnesses. No independent witnesses have been examined by the prosecution, except their relatives and interested witnesses. It is his further submission that though there are independent witnesses available as per the case of the 17 - - prosecution, the investigating agency has not examined any such witnesses and only with an intention to rope all the accused persons by concocting, the provisions of Section 149 of IPC has been included. PWs.3, 5, 6 and 8 are the blood relatives and interested witnesses. Name of PW5 is not found either in the complaint or in the FIR, so also PW6. It is his further submission that PW3 though has been examined before the Court, subsequently he has not tendered himself for cross-examination. Under such circumstances, the evidence of such witness is not going to help the case of the prosecution. PW8 is not an eyewitness to the incident. It is his further submission that admittedly when there was darkness, it is very doubtful to identify the accused persons. In that light, the prosecution ought to have conducted Test Identification Parade. It is his further submission that even though there is no confidence to repose in the evidence of these witnesses, the trial Court by relying upon such evidence has wrongly convicted the accused. It is his further submission that Veeranna Gouda, 18 - - who is said to be an eyewitness to the alleged incidence has not been examined before the Court. In that light, adverse inference has to be drawn. It is his further submission that though the prosecution is having a discretion to examine the witnesses as per its choice, it cannot suppress the material and main witnesses. It is his further submission that the evidence of PW1 goes to show that PW8 has come to the place after 45 minutes after the incident. That itself shows that PW8 was not present. It is his further submission that the recovery made in Crime No.107/2007 cannot be made use of in this case under Section 27 of the Evidence Act. No Identification Parade has been conducted in respect of the weapons used and no witnesses have stated that these are the weapons which have been used by the accused persons while committing the crime. Under such circumstances, the trial Court ought to have given benefit of doubt to the accused.
6. The weapons used have not been specifically stated and the doctor who has been examined has also not 19 - - correspondingly stated that the injuries have been caused with sharp objects. It is his further submission that Ex.P51 was kept ready before the weapons were given for the purpose of examination. The report was already kept ready on 9.1.2008, subsequently documents have been taken back and the opinion has been sent. That itself creates a doubt in the case of prosecution whether the weapons used are one and the same. The serology test has not been conducted. Though it is contended that PW6 was present at the time of alleged incident, in Ex.P1 complaint his name is not appearing, that itself indicates that except PW1 no other persons were present and PWs.4 and 6 have been introduced for the first time. Subsequently, it is his further submission that first part of the incident has taken place and immediately thereafter the second part of the incident has taken place. Compliant has been got prepared after the inquest has been drawn. In the inquest, name of the accused has not been stated. It is his further submission that PW5 does not speak about the first 20 - - incident and the name of the grand son of Chikkana Gouda does not find a place in ExP1 and his statement has not been recorded by the Investigating Officer. It is his further submission that at one stretch the alleged incident has been stated at 7.30 p.m. and subsequently other witnesses have stated the timings differently. That itself is a self contradiction and it appears that he is not an eyewitness to the alleged incident and he has been planted as an eyewitness to the alleged incident. It is his further submission that the place of incident itself is doubtful. Neither PW2 nor PW6 have stated the presence of PW4, when his father has been assaulted and mother is present and when she has given her evidence. She has deposed that she was present in the house. All these circumstances creates a doubt about the presence of these witnesses at the place of alleged incident.
7. It is further submitted that inquest proceedings have been drawn from 10.15 a.m. to 12.15 p.m. and at the same time the spot mahazar has been drawn as per 21 - - Ex.P37. If really PWs.2 and 6 are the eyewitnesses, definitely their statements ought to have been recorded during the course of inquest, but their statement has been recorded one week after CID took the investigation. In that light, it is his submission that PWs.2 and 6 cannot be accepted as an eyewitness to the alleged incident. It is his further submission that PWs.1 and 2 are the injured eyewitnesses. Even though nearby Moka police station is there and hospital is also existing, neither they have lodged the complaint nor taken treatment in the hospital, deliberately they have gone to Bellary. It is his further submission that from the date and time of the alleged incident the complaint and FIR sent to the jurisdictional Court is belated. Though the alleged incident has taken place at about 7.45 on the previous night, Ex.P1 complaint has been received by the jurisdictional Magistrate at about 2.30 p.m. That itself creates a doubt that only after deliberation and discussions, many more accused have been included to take a revenge against them. It is his 22 - - further submission that when an inquest proceedings have been drawn as per Ex.P34, only 8 accused persons have been shown and as per the evidence of the Investigation Officer, subsequently remaining accused persons have been involved and who has stated about the presence of those accused has not been made clear. It is his further submission that when a spot mahazar has been drawn as per Ex.P37, one more eyewitness has been introduced and the incident goes on changing from time to time.
8. PW54 in his evidence has deposed that they have sought the report about the supply of electricity on 9.11.2007 and he collected the material and has given the report as per Ex.P64. That itself clearly goes to show that subsequently the documents have been concocted. It is his further submission that PW46 has given his intimation to the police at about 8.00 p.m. Then under such circumstances, police ought to have gone to the spot immediately. When an information has been received about the cognizable offence and the police were also present 23 - - immediately after the incident, but the same has not been reduced into writing and a case has not been registered. No explanation has been given in this behalf. It is his further submission that as per Ex.P67 the wound certificate of Siddarama Gouda, the alleged incident has taken place on 9.11.2007 at about 7.30 p.m., so also in Exs.P68 and P69 the timing has been mentioned as 7.30 p.m. When as per the case of the prosecution the alleged incident has been taken place after 7.45 p.m. and if the wound certificate shows that they have suffered injuries at about 7.30 p.m. where exactly they received the injuries and who assaulted them creates a doubt.
9. The Investigating Officer PW.57 has deposed that when he went and saw that Nagaraja Gouda and Siddarama Gouda have suffered with injuries and the finger of Radhamma was also cut and Shivagangamma has also suffered injuries and he has sent them to hospital, but their statements have not been immediately recorded. It appears that only after consultation of the Medical Officer, 24 - - their statements have been prepared. When the statement of the witnesses have not been recorded at an earliest point of time to develop the case as against the accused, subsequent statements have been recorded. It is his further submission that if there is delay in recording the statement of the witnesses and if the prosecution has not given any explanation about the delay of recording the statement, then under such circumstances it creates a serious doubt in the case of the prosecution. To substantiate the said argument, he relied upon the decision in the case of Harbeer Singh Vs. Sheeshpal and Others reported in (2016) 16 SCC418and another decision in the case of Ganesh Bhavan Patel and Another Vs. State of Maharashtra reported in (1978) 4 SCC371 It is his further submission that the evidence of PWs.1 and 2 is not trustworthy and reliable and no credence can be given to such evidence and both the incidents have taken place at one and the same time. But the prosecution have made out two different incidents at 25 - - two different places. It is his further submission that the conduct of the witnesses have to be seen. Normal woman will not go to see the neighbourers instead of attending to her own husband. In that light, the contention of the prosecution that she went and tried to see Ramana Gouda, appears to be doubtful. When there is a pitch dark nothing was visible. Under such circumstances, they cannot be considered to be witness in the eye of law. On these grounds he prayed to allow the appeals and to acquit the accused.
10. Per contra, it is the submission of the learned Special Public Prosecutor, that there is evidence to show that the accused persons have conspired and have made a sketch in the house of PW5 and thereafter, with an earlier animosity they have come and assaulted Nagaraja Gouda and Sanna Mallanna Gouda. PW1 is none other than the wife of Nagaraja Gouda, PW4 is the daughter, PW6 is the son and they were present and they are the eyewitnesses to the alleged incident and all the witnesses have supported 26 - - the case of the prosecution. When the material witnesses have supported the case of the prosecution, it is not necessary to examine all the witnesses. It is the quality of evidence not the quantity which has to be looked into by the Court. No contradictions have been brought during the course of cross-examination except Ex.D1. It is his further submission that PW1 has clearly stated about the conspiracy and who are all the accused persons outside the house and inspiring and instigating the members unlawfully and other accused persons who have entered the house have assaulted. In her evidence she has categorically stated the overt acts of each of the accused persons. She being an injured eyewitness, her evidence is to be weighed by giving a weight and her presence at the place of incident will not create any doubt because of injuries she has suffered. She has further deposed that the other accused persons who are standing outside were not allowing any other persons to enter their house and PW1 is a helpless lady and she has also suffered with injuries and 27 - - has witnessed the same. Subsequently, to save the life son Veeresha PW6 came and because of agony she did not give details, but whatever she remembered has been given in the First Information Report and when COD took the investigation, she has given her clear statement and as such there is no lacuna in implication of the accused. It is his further submission that there is no delay in reaching the FIR and complaint to the jurisdictional police. PW43 has clearly deposed with regard to the entrustment of the complaint and carrying of the same and giving it to jurisdictional Magistrate. It is his further submission that there is unimpeachable evidence about the injured eyewitnesses and during the course of cross-examination nothing has been elicited and when she has withstood the cross-examination and nothing is there to go to the root of the prosecution, then under such circumstances, the accused are liable to be convicted. The minor contradictions and inconsistencies not go to the root of the case of the prosecution. 28 - - 11. PWs.2 and 3 are the injured eyewitnesses, they have also corroborated with the evidence of PW1 and their presence at the place of incident has not been denied. There is no delay in recording the statement of these witnesses and other witnesses. It is further submitted that the house is situated near by the next house. PW5 was very much present being the grand-son who has also been assaulted by the accused persons. PWs.2 and 3 though are child witnesses, they have identified the accused persons, their evidence is also corroborated with the evidence of PW.1. In the statement of PW4 recorded by the Investigating Officer, the name of PW5 also appears, since the said witness is minor, in order to ascertain the mental condition, he has waited for some time and thereafter he has recorded his statement. It is his further submission that delay in recording the statement of the witnesses is not considered to be fatal to the case of the prosecution. In order to substantiate his said contention he relied upon the decision in the case of V.K.Mishra and Another Vs. State 29 - - of Uttarakhand reported in (2015) 3 Crimes (SC) 193 equivalent to 2015(9) SCC588 It is his further submission that when Investigating Officer came to be examined, he has not been cross-examined on this point. It is his further submission that PW6 is also an eyewitness to the alleged incident. They were watching the TV and even the certificate issued by the concerned authority clearly goes to show and corroborated with the evidence of PW6 that there was sufficient light at the time of alleged incident. It is his further submission that when PW8 went to the house of Susheelamma, she was standing in between the house of the assailants and the deceased and they have identified the accused persons. It is his further submission that the accused persons were knowing what act they are doing and the consequences thereof with a common object. With an intention to take away the life of the deceased they have come to the said place and have assaulted with lethal weapons including the wooden pounder (vanake). This evidence is also corroborated with 30 - - the evidence of the eyewitnesses who have been examined before the Court. The overt acts of each of the accused persons shows that the accused persons with a common object of causing the death have come to that place. In that light, all the accused persons are liable to be convicted for the alleged offence. In that light, he relied upon the decision of the Rajasthan High Court in the case of Hans Raj and Others Vs. State of Rajasthan reported in 2015 Crl.LJ3596 It is his further submission that the first information report is not an encyclopedia and it is not necessary to mention every minute details in the said report. In that light, he relied upon the decision in the case of Pedda Narayana and Others Vs. State of Andhra Pradesh reported in (1975) 4 SCC153(AIR1975SC1252. It is further submitted that the trial Court after taking into consideration the deminor of the witnesses and the evidence has come to a right conclusion. While appreciating the evidence, entire evidence has to be looked into, when there are child witnesses, their capacity to 31 - - recaptulate gruesome incident witnessed by them in their memory for a long time has to be kept in view. In that light, he relied upon the decision in the case of State of Uttar Pradesh Vs. Krishna Master and Another reported in (2010) 12 SCC324 It is further submitted that the inquest mahazar which has been drawn has to be used for a limited purpose to ascertain whether the deceased died a homicidal death or a natural death. Details should not be contained in the said inquest mahazar. It is his further submission that the provisions of Section 427 of Cr.P.C. is not applicable since both the proceedings are independent and different. It is his further submission that the present appeals filed by the petitioners-accused are devoid of merits and the same are liable to be dismissed.
12. It is his further submission that the accused persons by constituting unlawful assembly have brutally committed a gruesome incident, where-under two lives have been taken away by the accused persons. The trial Court without considering the fact that the said cases 32 - - comes within the purview of rarest of rare cases and it ought to have imposed a maximum punishment including death sentence, in that light, the judgment of the trial Court requires to be interfered with. On these grounds he prayed to allow the appeal filed by the State.
13. Before going to consider the contentions raised by the learned Senior Counsel and the learned Special Public Prosecutor, the prosecution has to establish that the death of the deceased Nagaraja Gouda is a homicidal death. In order to substantiate the said fact, prosecution got examined PW.17-inquest mahazar pancha and PW.33-the doctor who has conducted autopsy over the body of the deceased Nagaraja Gouda. In the evidence of PW.17, he has deposed that a mahazar has been drawn as per Ex.P34 by showing the dead body of Nagaraja Gouda. He has not stated any injuries found over the body of the deceased Nagaraja Gouda. But as per the evidence of PW.33, the doctor who has conducted autopsy over the body of the deceased, he has deposed that he has conducted autopsy 33 - - and he has found as many as 23 injuries including the chop wounds and fractures. He has also examined the weapons and has opined that the weapons examined are capable of causing the injuries found on the deceased Nagaraja Gouda and are capable of causing death and has issued the PM report and opinion as per Exs.P48 to P51. During the course of cross-examination of PW.33 it has not been disputed with regard to the death of the deceased Nagaraja Gouda. Even the learned Senior Counsel during the course of arguments has not disputed the fact of death of the deceased as a homicidal death. Taking into consideration of the above facts, we are of the considered opinion that the death of the deceased Nagaraja Gouda is unnatural death because of the injuries sustained by him.
14. The first and foremost contention taken up by the learned Senior Counsel for the accused is that the said dispute started between Lingayath and Nayak communities and on 1.9.2006 and one Sannasunkanna of Nayak community was murdered who is none other than the 34 - - father of accused No.16. It is his further submission that in the said case no witnesses have supported and the accused has been acquitted and in that light, there was no motive. But as could be seen from the evidence of PWs.1 and 4 they have categorically stated before the Court that in connection with the death of Sannasunkanna a case has been registered as against the husband of the present complainant and he has been arrested and sent to jail and subsequently released on bail after 40 days. With regard to that incident, accused persons belonging to Nayak community in a group came to their house and assaulted and killed her husband. Merely because the accused has been acquitted, it cannot be accepted that there was no motive or ill-will. Even on perusal of the evidence it indicates that some dispute was still existing with regarding to taking of water and in that light the present incident has taken place.
15. Be that as it may, motive plays a very important role in case of circumstantial evidence. But in the instant 35 - - case, there are eye witnesses to the alleged incident. Under such circumstances, the motive which has been alleged will act as a double edged weapon which can be used as shield or sword. When there are eye witnesses to the alleged incident, in the absence of motive it would not by itself make any material difference. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Sheo Shankar Singh v. State of Jharkhand, reported in (2011) 3 SCC654 At paragraphs-15 to 24 it has been observed as under:- “15. The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well settled by a long line of decisions of this Court. These decisions have made a clear distinction between cases where the prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eyewitnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the 36 - - prosecution may rely. Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eyewitness account of the occurrence. That is because if the court upon a proper appraisal of the deposition of the eyewitnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely, even if the prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eyewitnesses is found unreliable or unworthy of credit, existence of a motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eyewitness account does not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eyewitnesses. See Shivaji Genu Mohite v. State of Maharashtra [(1973) 3 SCC219:
1973. SCC (Cri) 214]. , Hari Shanker v. State of U.P.[(1996) 9 SCC40:
1996. SCC (Cri) 913]. and State of U.P. v. Kishanpal [(2008) 16 SCC73: (2010) 4 SCC (Cri) 182]. . 37 - - 16. The case at hand rests upon the deposition of the eyewitnesses to the occurrence. Absence of motive would not, therefore, by itself make any material difference. But if a motive is indeed proved it would lend support to the prosecution version. The question is whether the prosecution has established any such motive to fortify its charge against the appellants.
17. Depositions of Apurba Ghosh (PW16, Aamlal Kisku (PW15 and Arup Chatterjee (PW19 are relevant on the question of motive and may be briefly discussed at this stage.
18. Arup Chatterjee (PW19 happens to be the son of the deceased Gurudas Chatterjee. According to this witness the appellants and most of their family members constitute what is described by him as “coal mafia” of Dhanbad whom the deceased used to fight, with the help of the police and administration to prevent the theft of coal in the region. The witness further states that Aamlal Kisku had a petrol pump situate at Belchadi, which petrol pump was given by Shri Kisku to the accused Sheo Shanker Singh for being run. Aamlal Kisku being an illiterate Adivasi was, according to the witness, being kept as a 38 - - bonded (bandhua) labourer by the appellant on payment of Rs. 30 per day. The witness further states that Aamlal Kisku approached the deceased for help and the latter with the help of police and administration got the ownership of the petrol pump restored to Shri Kisku. Both these steps, namely, prevention of theft of coal in the region and restoration of the petrol pump to Aamlal Kisku annoyed the appellant Sheo Shanker Singh, for which reason the deceased was done to death after he had won his third consecutive election to the State Assembly.
19. In cross-examination the witness Arup Chatterjee has expressed his ignorance about the land where the petrol pump was installed and about the source of income of Aamlal Kisku. The witness also expressed ignorance about the expenditure involved in the installation of the pump or the source from where Shri Kisku had arranged finances. The witness stated that criminal cases were pending before the court against Sheo Shanker Singh and Narmedeshwar Prasad Singh and his sons, but expressed ignorance about filing of the civil suit by Narmedeshwar Singh regarding the petrol pump in dispute. The witness claimed to have heard a 39 - - conversation between Aamlal Kisku and the deceased regarding the dispute over the petrol pump.
20. Aamlal Kisku (PW15 has, in his deposition, stated that he owns a petrol pump in Belchadi which was allotted to him out of the Adivasi quota. Since he was not familiar with the business in the sale of oil and lubricants, he had taken help from Narmedeshwar Prasad Singh and Sheo Shanker Singh. Subsequently, Sheo Shanker Singh, the appellant started treating him like a labourer and did not render any accounts regarding the petrol pump. He, therefore, made complaints to the company and approached late Gurudas Chatterjee, MLA, and it was after long efforts that the petrol pump was restored to the witness. Sheo Shankar Singh and Narmedeshwar Prasad Singh had extended threats to him regarding which he had informed the police.
21. In cross-examination the witness Aamlal Kisku stated that the business of petrol pump was carried on by him in partnership with Sheo Shanker Singh for 4-5 months in the year 1997. No partnership deed was, however, written. He did not know whether any joint account with the 40 - - appellants had been opened in Poddardih Branch of Allahabad Bank. He also did not know whether sales tax registration was in joint names and whether the land belonged to Sheo Shankar Singh. The witness admits that he had lodged a criminal case against Sheo Shankar Singh, Rama Shanker Singh and Rajesh Singh and that another case was filed against Narmedeshwar Prasad Singh also. The witness denied that the petrol pump had been installed with the help of the money provided by Sheo Shanker Singh and Narmedeshwar Prasad Singh and that the cases referred to by him had been lodged against the said two persons on the incitement of others.
22. Apurba Ghosh (PW16 apart from being an eyewitness to the incident also mentions about a petrol pump situated on GT Road at Nirsa owned by a person belonging to Scheduled Tribe community but was being run by Narmedeshwar Prasad Singh illegally. The deceased fought against them with the help of police and local administration because of which the ownership of the petrol pump was got restored to the owner concerned. The witness also refers to a statement made by the deceased regarding coal theft 5 or 6 days before the incident in question as a result 41 - - whereof Narmedeshwar Prasad Singh and Nooren Master were both sent to jail.
23. There is thus evidence to prove that a petrol pump situated at GT Road at Nirsa stood in the name of Aamlal Kisku which had been allotted in his name in the Scheduled Tribes quota. It is also evident that to establish and run the said petrol pump Aamlal Kisku had taken the help from Shri Narmedeshwar Prasad Singh and Sheo Shankar Singh. Disputes between the original allottee and the appellant Sheo Shankar Singh and his father Narmedeshwar Prasad Singh had, however, arisen and manifested in the form of civil and criminal cases between them. Aamlal Kisku had in that connection taken the help of the deceased who had with the help of the police and local administration secured the restoration of the petrol pump to Shri Kisku which annoyed the appellant Sheo Shankar Singh and his father Narmedeshwar Prasad Singh.
24. There is also evidence to the effect that the deceased had acted against what has been described as “coal mafia” of Dhanbad with the help of police and administration to prevent the coal theft in the region and the steps taken by the 42 - - deceased had resulted in the arrest of Narmedeshwar Prasad Singh and Nooren Master in connection with the said cases. Both these circumstances appear to have contributed to the incident that led to the killing of the deceased who was perceived by the appellants as a hurdle in their activities.
16. It is further observed by the Hon’ble Apex Court that in the absence of motive it is of no consequence and it is insignificant when direct evidence is there to establish the crime as against the accused. In that light, we want to rely upon the decision in the case of Yogesh Singh Vs. Mahabeer Singh, reported in (2017)11 SCC195 At paragraph-46 it has been observed as under:- “46. It has next been contended by the learned counsel for the respondents that there was no immediate motive with the respondents to commit the murder of the deceased. However, the trial court found that there was sufficient motive with the accused persons to commit the murder of the deceased since the deceased had defeated accused Harcharan in the Pradhan 43 - - elections, thus putting an end to his position as Pradhan for the last 28-30 years. The long nursed feeling of hatred and the simmering enmity between the family of the deceased and the accused persons most likely manifested itself in the outburst of anger resulting in the murder of the deceased. We are not required to express any opinion on this point in the light of the evidence adduced by the direct witnesses to the incident. It is a settled legal proposition that even if the absence of motive, as alleged, is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of the witnesses as to commission of an offence, motive loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance. (Hari Shanker v. State of U.P. [Hari Shanker v. State of U.P., (1996) 9 SCC40:
1996. SCC (Cri) 913]. , Bikau Pandey v. State of Bihar [Bikau Pandey v. State of Bihar, (2003) 12 SCC616:
2004. SCC (Cri) Supp 535]. , State 44 - - of U.P. v. Kishanpal [State of U.P. v. Kishanpal, (2008) 16 SCC73: (2010) 4 SCC (Cri) 182]. , Abu Thakir v. State of T.N. [Abu Thakir v.State of T.N., (2010) 5 SCC91: (2010) 2 SCC (Cri) 1258]. and Bipin Kumar Mondal v. State of W.B. [Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC91: (2011) 2 SCC (Cri) 150]. )
17. Keeping in view the ratio laid down above, on perusal of the evidence, it indicates that in the alleged crime, there was motive and only on the basis of motive, case cannot be decided. In that light, we have to look into the other evidence which is available before the Court.
18. It is the contention of the learned Senior Counsel that the testimony of eye witness is not trustworthy, reliable since no independent witness has been examined and the witnesses who have been examined have not supported the case of the prosecution and they have been treated as hostile. As could be seen from the records, PWs.1 to 5 are the eye witnesses to the alleged incident. In the evidence of PW.1 she has deposed that on 9.11.2007 at 45 - - about 7.30 p.m., in her house, herself, her husband, daughter Supriya and son Manjunath, brother-in-law Veeresh Gouda were there and they were watching the television. It is further alleged that at that time, the accused persons belonging to Nayak community came to their house. She has further deposed that they were uttering not to leave Lingayath community people. At that time, her husband went beneath the cot to hide. But accused No.10 Kallappa, accused No.11 Chandra, taken out the cot and at that time, accused No.1 Durgappa assaulted her husband on his left shoulder. Accused No.2 Ramanjini assaulted on his head and right knee. Accused No.3 Parasappa assaulted with macchu on his head, accused No.4 taking the macchu from the hands of accused No.1 Durgappa assaulted on the right shoulder and right ear of her husband. Accused No.10 Kallappa by taking the macchu from the hands of accused No.3 Parasappa assaulted on the right ear and on both the eyebrows of her husband. Accused No.4 Kaggal Venkatesha assaulted with 46 - - macchu on the right hand, left thigh, accused No.14 Nandihalli Mallaiah assaulted with macchu on the right hand, palm. Two fingers were amputed. He also assaulted with macchu on right thigh and right ankle. Accused Somalinga assaulted on left elbow and forearm. Accused No.24-Sunkanna assaulted with cart-pegs on the left forearm. Accused No.13 Eranna assaulted with axe on the left forearm. By seeing the accused persons assaulting her husband, her son Manjunath PW.6 out of fear ran away from the house. She has further deposed that when she went to save her husband, accused No.4 Kaggal Venkatesha assaulted her with macchu on both hands. Her index finger is amputed, he has also assaulted on the left leg. She has further deposed that accused No.11 Chandra assaulted with macchu on her right hand and palm. She has further deposed that other accused persons were instigating by standing outside. Her husband fell down with bleeding injuries by stating that he is finished. Accused persons went away from her house. She has 47 - - further deposed that when she came out, she saw accused No.8 Pampapathi, accused No.1 Durgappa, accused No.12 Doddabasappa, accused No.15 Kadappa, accused No.16 Eranna, accused No.17 Sadakali, accused No.18 Gadininga S/o.Parasappa, accused No.19 Mallaiah, accused No.20 Ramu, accused No.21 Gadilinga S/o.Doddasunkanna, accused No.22 Gandilinga S/o.Gurka, accused No.25 Linganna, accused No.23 Dhananajya S/o.Sunkanna, accused No.25 Lingappa S/o.Thimmappa, were shouting not to leave the Lingayat people and were also obstructing others not to enter the house. Similarly PWs.2, 3 are also injured eye witnesses and they have also reiterated the evidence of PW.1. PW.4 is the daughter of the deceased and PW.1. PW.5 is grandson of PWs.2 and 3 and PW.6 is the son of the complainant. They are also eye witnesses and have supported the case of the prosecution.
19. Though it is contended by the learned Senior Counsel that they are interested witnesses and their testimony cannot be relied upon, there is a lot of difference 48 - - between interested witnesses and related witnesses. Witness may be called interested only when he or she has derived some benefit from the result of litigation in a decree in a civil case on seeing the accused person punished and related witness is one who is the close relative of the deceased. Merely because the witness is interested witness or closely related with victim, it does not detract from the value to be attached to the evidence of such witness and whenever a relative has been murdered by the accused persons naturally they are interested in saying that the real murderer of the relative is convicted of the offence and they cannot be expected to adopt a course by which some innocent persons would be substituted for the person really guilty of the murder, that too, when no enmity as such has been proved to have existed between the witness and the accused. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Bupendra Singh Vs. State of Punjab reported in AIR1968SC1438 At paragraph-6 it has been observed as under:- 49 - - “6. In view of these principles indicated by us above, and in view of the fact that, in this case, the High Court did not properly examine the defence evidence on the ground that the counsel for the appellant in that court admitted that there was no substance in it, we permitted learned counsel for the appellant in this appeal to take us through the entire evidence on the record given by the prosecution and the defence so as to enable us to form our own judgment about the correctness of the conviction and sentence of the appellant. We, however, find that, after examining the entire evidence, we are unable to hold that any grounds are made out for interference with the conviction.
20. When independent witnesses have not supported the case of the prosecution it cannot be held that no such incident has taken place. In the case on hand, the murder of Nagaraja Gouda has taken place in the house and the members of the deceased’s family have supported the case of the prosecution. Independent witnesses may not support the case of the prosecution because of the reason 50 - - that if they come and depose before the Court they may create enmity with the accused persons and in that light, they might have stayed neutral without affecting the interest of both the parties. It is well settled proposition of law that merely because the witnesses are related to the deceased and if the presence of such witnesses at the time of occurrence is proved then it is considered to be natural and probable and the evidence tendered by such witness is found in the light of surrounding circumstance and probabilities of the case to be proved. As could be seen from the evidence of the prosecution produced PW.1 is none other than the wife of the deceased who has also suffered with the injuries. PW.2 Shivagangappa is also an injured eye witness who was present along with her husband and PW.3 is also an injured eye witness. PW.4 is none other than the daughter of the deceased and PW.1. Their presence at the place of incident is most probable and justifiable. Under such circumstances, it can provide a good and sound basis for the purpose of conviction of the 51 - - accused. This proposition of law has been laid down by the Hon’ble Apex Court in the case of State of Uttar Pradesh Vs. Kishanpal & others, reported in (2008)16 SCC73 At paragraph-18 and 19 it has been observed as under:- “18. The plea of defence that it would not be safe to accept the evidence of the eyewitnesses who are the close relatives of the deceased, has not been accepted by this Court. There is no such universal rule as to warrant rejection of the evidence of a witness merely because he/she was related to or interested in the parties to either side. In such cases, if the presence of such a witness at the time of occurrence is proved or considered to be natural and the evidence tendered by such witness is found in the light of the surrounding circumstances and probabilities of the case to be true, it can provide a good and sound basis for conviction of the accused. Where it is shown that there is enmity and the witnesses are near relatives too, the court has a duty to scrutinise their evidence with great care, caution and circumspection and be very careful too in weighing such evidence. The testimony of 52 - - related witnesses, if after deep scrutiny, found to be credible cannot be discarded.
19. It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness, if otherwise the same is found credible. The witness could be a relative but that does not mean his statement should be rejected. In such a case, it is the duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the court while scrutinising the evidence of the interested witness.
21. It is also well settled proposition of law that testimony of witnesses should not be rejected merely because they are related to the deceased. However, their testimony has to be carefully analyzed because of their relationship. If the evidence produced is cogent and if there is no discrepancy, then the same can also be 53 - - accepted. This proposition of law has been laid down by the Hon’ble Apex Court in the case of State of Rajasthan Vs. Arjun Singh and others, reported in (2011)9 SCC115 At paragraph-22 and 27 it has been observed as under:- “22. Now, let us consider the oral evidence led in by the prosecution. We have already pointed out that though the prosecution has examined as many as 30 witnesses, they heavily relied only on 6 witnesses and out of these, Raj Singh (PW2, Dhiraj Raj Singh (PW3 and Brij Raj Singh (PW4 are brothers, Roop Singh (PW6 is their father and Durga Shankar (PW5 and Satya Narain (PW9 were working as labourers in the house of Roop Singh at the time of occurrence. It is true that the names of PWs 3, 4 and 6 were not mentioned either in parchabayan (Ext. P-32) or in the statements, Exts. P-22 to P-23, recorded by the Judicial Magistrate (PW18 on the day of the occurrence.” 54 - - “27. In the light of the above conclusion, the only witness available to support the case of the prosecution is Raj Singh (PW2. Let us consider his evidentiary value and how far he supported the case of the prosecution.
22. It is well settled proposition of law that the contrary reason has to be shown when a plea of partiality is raised to show that witness had reason to screen actual culprits and falsely implicate the accused. If evidence of eye witness though a close relative of the victim inspires confidence, it must be relied upon without seeking corroboration with minute particulars. But however, the Court must be cautious while considering the evidence of such witnesses. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Khursheed Ahmed Vs. State of J & K, reported in (2018) 7 SCC429 At paragraphs-29 to 33 it has been observed as under:- “29. The learned Senior Counsel submits that in the present case, according to the prosecution, Sajad Ahmed, father of the deceased (PW9 was 55 - - the only person who was present at the scene of offence at the time of occurrence. The entire case, therefore, depends on the veracity of his evidence. PW9 being father of the deceased, the appellant-accused had naturally made the allegation that he is an interested witness and therefore his evidence is not reliable. We are not able to appreciate such contentions. This Court considered the aspect of truthfulness of an interested witness in several cases. In Dalip Singh v. State of Punjab [Dalip Singh v. State of Punjab, 1954 SCR145: AIR1953SC364:
1953. Cri LJ1465 it is observed: (AIR p. 366, para
26) “26. … Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.” 56 - - 30. In Masalti v. State of U.P. [Masalti v. State of U.P., (1964) 8 SCR133: AIR1965SC202: (1965) 1 Cri LJ226 this Court observed: (AIR p. 209, para
14) “14. … There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice.” 57 - - 31. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused [See Harbans Kaur v. State of Haryana [Harbans Kaur v. State of Haryana, (2005) 9 SCC195:
2005. SCC (Cri) 1213 :
2005. Cri LJ2199 ]..
32. If the evidence of an eyewitness, though a close relative of the victim, inspires confidence, it must be relied upon without seeking corroboration with minute material particulars. It is no doubt true that the courts must be cautious while considering the evidence of interested witnesses. In his evidence, the description of the incident by PW9clearly portrays the way in which the accused attacked the deceased causing fatal head injury as propounded by the prosecution. The testimony of the father of the deceased (PW9 must be appreciated in the background of the entire case. 58 - - 33. In our opinion, the testimony of PW9inspires confidence, and the chain of events and the circumstantial evidence thereof completely supports his statements which in turn strengthens the prosecution case with no manner of doubt. We have no hesitation to believe that PW9is a “natural” witness to the incident. On a careful scrutiny, we find his evidence to be intrinsically reliable and wholly trustworthy.
23. It is also well settled proposition of law that the relationship of the witnesses to the deceased would not be a sufficient ground for discrediting their testimony. It is also well settled proposition of law that the close relatives of the deceased persons are most reluctant to spare the real assailant and instead of falsely involving another person in place of the real assailant. If the natural conduct of the witnesses related to the deceased is creditworthy, then the same can be relied upon. In that light, we want to rely upon the decision in the case of State of Uttar 59 - - Pradesh Vs. Samman Dass, reported in (1972) 3 SCC201 At paragraph-23 it has been observed as under:- “23. The above evidence of Bhagwan Das is corroborated by the evidence of Choith Ram (PW2, Ayal Das (PW6 and Shobhraj (PW7. The evidence of the abovementioned four witnesses was found by the learned Sessions Judge to be convincing and reliable. After having been taken through that evidence, we see no cogent ground to take a view different from that of the Sessions Judge. It is no doubt true that Bhagwan Das PW is the brother of Bangamal, maternal grandfather of Putlibai deceased and that sister of Choith Ram PW is married to Bangamal. It is also true that Ayal Das PW is a cousin of Gurmukh Das, father of Putlibai. The relationship of the abovementioned three witnesses to Putlibai deceased would, in our opinion, be not a sufficient ground for discrediting their testimony. It is well known that the close relatives of a murdered person are most reluctant to spare the real assailant and falsely involve another person in place of the assailant. Had Putlibai been killed by some 60 - - other person, the natural conduct of the abovementioned three witnesses, who were related to Putlibai on her parents' side, would have been to offer sympathy to Samman Dass accused and help him in the apprehension of the real culprit, rather than to falsely involve him in the murder of his wife. There is no cogent evidence on the record to show that any of the abovementioned three witnesses had any animus against the accused. The accused, no doubt, took the plea that the abovementioned witnesses were against his marriage with Putlibai, but that suggestion has been denied by these witnesses.
24. Keeping in view the aforesaid proposition of law on perusal of the evidence of PW.1, she has categorically stated about the overt acts of each of the accused persons assaulting with lethal weapons, so also the evidence of PW.2 who is also an injured eye witness and PW.3 who is also injured eye witness. Though the evidence of PW.3 is half and further examination has not been conducted, the evidence of PWs.1 and 2, 4 to 6 corroborated with each 61 - - other and the same can be accepted and relied upon. Even during the course of cross-examination of these witnesses nothing has been elicited so as to discard their evidence.
25. It is the specific contention of the learned Senior Counsel that there was pitch dark and it was Deepavali Amavasya as such, nothing was visible and the details given with regard to assault, are doubtful and in that light, he has relied upon a decision in the case of State of Madhya Pradesh Vs. Makhan @ Madan & others, reported in (2008)10 SCC615 At paragraph-9 it has been observed as under:- “9. Maniya Bai (PW5 stated in her examination-in-chief that she had seen the accused persons assaulting the deceased with fists and slaps but in the cross-examination she had stated that when she reached the police station along with Somti Bai (PW1 they had disclosed that the deceased was lying in an injured condition and had not disclosed the names of the accused persons. In contrast Somti Bai (PW1, Lachhu (PW2 and Maniya Bai (PW62- -
5) stated that the name of the accused was in the first information report. In her cross- examination she clearly admitted that the police told them that they would make enquiry and if the report was found false they would be in trouble. Additionally, Maniya Bai (PW5 stated that they had reached the police station at about midnight. But the FIR was registered early morning next day. Lachhu (PW2 in his statement had stated that he could not identify any of the accused persons due to darkness. If that be so, the evidence of Somti Bai (PW1, Maniya Bai (PW5, that they had clearly identified the accused persons cannot be believed. It is true that even in darkness known persons can be identified from the manner of speech, style of walking and several other peculiar features. But the evidence of PW2was to the effect that because of darkness none of the accused persons could be identified. In the instant case not only there is discrepancy as regards the place of occurrence but also on several vital aspects like non-disclosure and non-possibility of identification.” 63 - - 26. As could be seen from the evidence of PW.42 Assistant Engineer (Electricity) who has issued the certificate as per Ex.P64, whereunder it indicates that there was supply of uninterrupted electricity from 7.00 p.m. to 9.00 p.m. at the place of incident. Be that as it may, the alleged incident has taken place in the house of PW.1 and the deceased and they have also deposed that they were watching the television when the accused persons have entered and have assaulted the deceased. The incident in question is not disputed during the course of cross-examination. PWs.1 and 2 have categorically stated overt acts of each of the accused. Admittedly the alleged incident has taken place in the house and no person will sit in the house without there being any light in a pitch darkness, at least some lamps are to be there in the house for the purpose of lighting. But it is nobody’s case. It is the specific case of the prosecution that there was light in the house of the deceased and PW.1 when the alleged incident took place. Taking into consideration of the 64 - - aforesaid evidence and material placed on record, we are of the considered opinion that the said contention of the learned Senior Counsel is not acceptable.
27. The next contention raised by the learned Senior Counsel is that no independent witnesses have been examined except interested and related witnesses. Though independent witnesses were available, non-examination of independent witnesses is fatal to the case of the prosecution. In that light, he relied upon the decision in the case of State of Maharashtra Vs. Dinesh, reported in (2018)15 SCC161 At paragraph-10 it has been observed as under:- “10. After giving our thoughtful consideration to the evidence of PW7 we have also considered the circumstances of the entire case and also the evidence of other prosecution witnesses. We find from the record that husband of PW7 who was also stated to be an eyewitness to the incident, was neither examined by police at the time of investigation, 65 - - nor even before the court and no satisfactory explanation for his non-examination is found on record. Apart from this, even, test identification parade was not conducted and no steps were taken to prove the blood group of the deceased with the bloodstains found on the alleged weapon used in the crime.
28. We have carefully and cautiously gone through the evidence of eye witnesses who have been examined before the Court. PW.1 is an injured eye witness and none other than the wife of the deceased Nagaraja Gouda. PW.2 is the wife of the PW.3 and she is also an injured eye witness. PW.3 is the husband of PW.2. He has also suffered with injuries. PW.4 is none other than the daughter of PW.1 and deceased Nagaraja Gouda. She is also an eye witness to the alleged incident. PW.5 is grandson of PW.3 and PW.6 is the son of the complainant. They have categorically stated with regard to overt acts of accused Nos.1 to 7, 10 to 14, 16, 24 and 26 and the presence of other accused persons at the place of incident. 66 - - Though the said witnesses have been examined and elaborately cross-examined by the learned counsel for the accused, nothing has been elicited so as to discard their evidence. Even during the course of cross-examination, nothing has been suggested as to who are the other persons who are present. PWs.11, 12, 14, independent witnesses have been examined before the Court, but they have not supported the case of the prosecution. When the alleged incident has taken place in the house of PW.1, PWs.1 to 6 are considered to be natural and probable witnesses to the alleged incident and independent witnesses may thought that they do not want to create any animosity either with the accused persons or with the complainant and they might have taken a step to remain neutral. Under such circumstances, it cannot be held that the interested and related witnesses are planted witnesses.
29. It is well settled proposition of law that the prosecution is having full discretion to examine the witnesses before the Court. The Court has to look into the 67 - - quality of evidence produced before the Court not the quantity. Non-examination of some of the witnesses is not always fatal to the case of the prosecution. When material witnesses have been examined, then under such circumstances, the contention of the learned Senior Counsel is not acceptable. It is well settled proposition of law that the evidence of the injured witnesses is entitled to be given a greater weight and very cogent and convincing grounds are required to discard the evidence of such injured witnesses. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Ramvilas Vs. State of Madhya Pradesh, reported in (2016)16 SCC316 At paragraph-6 it has been observed as under:- “6. In the incident, Narmada Prasad (PW3 and Uma Bai (PW5, sister of the deceased sustained injuries and Ext. P-9 and Ext. P-10 are the MLC Reports of Narmada Prasad (PW3 and Uma Bai (PW5, respectively issued by Dr S.K. Dhoble (PW10. Narmada Prasad (PW3 and Uma Bai (PW5 being injured witnesses, their presence at the time and place of occurrence 68 - - cannot be doubted. Evidence of the injured witnesses is entitled to a great weight and very cogent and convincing grounds are required to discard the evidence of the injured witnesses. We do not find any ground to disbelieve the evidence of injured witnesses Narmada Prasad (PW3 and Uma Bai (PW5.
30. On close scrutiny of the evidence of the aforesaid witnesses, their presence at the place of occurrence cannot be doubted. In case of related witnesses, the Court may not treat his or her testimony inherently tainted and needs to ensure only the evidence is inherently reliable, probable, cogent and consistent. When the alleged incident has taken place in the house, no other independent witnesses will be present other than the relatives and kith and kin. Taking into consideration the above said aspect, we are of the considered opinion that the contention of the learned Senior Counsel in this behalf, does not have any force. It is well settled proposition of law that ordinarily a close relative would be the last to screen the real culprits and falsely implicate an innocent person. This proposition of 69 - - law has been laid down by the Hon’ble Apex Court in the case of Md.Rojali & others Vs. State of Assam, Ministry of Home Affairs, though the secretary, reported in 2019 SCC OnLine SC235 At paragraphs-12, 13, 14 and 15 it has been observed as under:- “12. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made by this Court in Dalip Singh v. State of Punjab, 1954 SCR145 wherein this Court observed: “26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative 70 - - would be the last to screen the real culprit and falsely implicate an innocent person…
13. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. We may refer to the observations of this Court in Jayabalan v. Union Territory of Pondicherry, (2010) 1 SCC199 “23. We are of the considered view that in cases where the Court is called upon to deal with the evidence of the interested witnesses, the approach of the Court while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.
14. In the instant matter, as already discussed above, we find the testimony of the 71 - - eye-witnesses to be consistent and reliable, and therefore reject the contention of the appellants that the testimony of the eye-witnesses must be disbelieved because they are close relatives of the deceased and hence interested witnesses.
15. Furthermore, though the counsel for the appellants tried to convince the Court with regard to minor discrepancies in the evidence of the six eye-witnesses with respect to the manner in which the assault took place, such attempt remains futile and cannot be accepted, inasmuch as minor variations in the evidence of the witnesses are bound to occur in a case like the one on hand, wherein a number of accused came in a group and assaulted a few persons suddenly and mercilessly, out of which a few died and others sustained injuries. We do not find any major contradiction in the evidence of the eye-witnesses. Their evidence is fully supported by the version of the doctors who conducted the post-mortem examinations.
31. While appreciating the evidence, the Court has to consider credibility of the witnesses and whether their physical presence was very much there at the place of 72 - - occurrence and was possible and probable, then the said evidence has to be acceptable. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Jaishree Yadav Vs. State of U.P., reported in (2005)9 SCC788 At paragraph-21, it has been observed as under:- “21. PW3s evidence was challenged by the defence in the courts below as well as before this Court on the ground that he is a partisan and biased witness being the son of the deceased Abid Ali. This fact of course is not disputed by the witness because it is the case of the prosecution itself that the deceased Abid Ali was inimical to the accused persons for various reasons mentioned hereinabove. PW3s presence at the place and time of the incident was challenged by learned counsel for the accused before us primarily on the ground that if really he was present at the time of incident he would have tried to protect his father and there was no material to show that any such thing was done by this witness. It was also pointed out from his evidence that though his father was 73 - - profusely bleeding the clothes of this witness were not bloodstained which indicated that he never even touched the body of his father which is an unnatural conduct on the part of a son present at the time of the murder of his father. This witness when cross-examined in this regard, admitted that since his father had died already he did not carry the body of his father nor did he touch the body of his father. In our opinion different people react differently to a given situation and from the fact that this witness did not choose to fall on the body of his father or carry his dead body from where it was lying, by itself cannot be a ground to reject his evidence. We have already accepted the fact that the complaint in question was lodged by this witness soon after the incident in question and PW8in his evidence has spoken to the complaint being lodged by this witness and he being present throughout the investigation proceedings at the spot on that day. His presence at the place of incident also cannot be treated as a chance presence inasmuch as he is a resident of that village though his father stayed in Deoria. Learned counsel for the appellant submitted that it is an admitted fact 74 - - that this witness has stated that he is an educated person and according to this witness the complaint in question was not written down by him but by his brother-in-law which is also an unnatural conduct indicating that he might not have been present at the time of incident. We do not think that this could also be a ground to suspect the presence of this witness at the time and place of incident. This witness in his evidence has stated that since his brother-in-law was available who was also a literate, he dictated the complaint to him which was scribed by his brother-in-law and we do not find anything unnatural in this conduct either. Next ground of attack in regard to the evidence of this witness is that he has not stated all the motives stated in his evidence before the court in the complaint. In other words, the complaint did not contain details of the motives as spoken to by this witness in his evidence before the court. We do not think that this also could be a ground to reject the evidence of this witness. In the complaint this witness has specifically stated that A-3 and A-4 had enmity with his father in regard to the auction of tehbazari of Nawalpur Chowk. He has further mentioned in the 75 - - complaint that so far as accused Ram Pratap Yadav is concerned, his father had a litigation pertaining to a particular land and so far as Hafiz Khairul Bashr is concerned, his father had a dispute pertaining to the erection of an electric pole. He has also mentioned in the complaint about an altercation PW6had with A-3 and A-4 in regard to the payment of tehbazari in regard to which PW6had made a complaint to his father on the fateful day. In this background we hardly find any force in the argument of learned counsel for the accused that this witness has made improvement in his evidence from what he had stated in his complaint. Of course during the course of his cross-examination he has elaborated the nature of enmity that his father had with these accused persons but then that could hardly be a reason to contend that what is stated in the complaint is either different from what is stated in the evidence in regard to the motive or the witness has made improvement in regard to the motive of the accused to commit the crime. Apart from the above challenge to the evidence of this witness, learned counsel for the accused pointed out certain contradictions, omissions and improvements found in his cross- 76 - - examination but then this again will have to be considered as considered by the courts below, in the background of the fact that the cross- examination of this witness was also spread over a period of nearly 6 months and he was subjected to nearly 480 questions. In this background for the reasons already stated above, as held by the two courts below, we do not think these contradictions, improvements and omissions would affect the credibility of this witness either.
32. Keeping in view the ratio laid down in the decision quoted supra, much weightage has to be given to the evidence of injured eye witnesses. When motive has been established and the witnesses have stated about the overt acts of each of the accused persons and accused persons have mercilessly assaulted the deceased and have also caused grievous injuries to the injured eye witnesses, in that light, if the evidence of eye witnesses is perused along with other circumstances, it clearly establishes the presence of those witnesses at the place of occurrence and their evidence is also credible and reliable. During the 77 - - course of cross-examination, nothing has been elicited to discard the evidence of the injured eye witnesses. Even as could be seen from the evidence of PWs.1 to 6 they have categorically stated as to how each of the accused persons have assaulted them and the deceased. There is corroboration with regard to overt acts of each of the accused persons assaulting the deceased and injured. If they were not present at the place of incident, then under such circumstances, it is highly impossible to depose the said fact before the Court by withstanding the cross- examination. Though during the course of arguments, the learned Senior Counsel brought some lacunae, they are bound to happen when a village rustic comes before the Court after long gap of the incident. Under such circumstances, the minor discrepancies in the evidence may happen, but what the Court has to do is that if the said lacunae or discrepancies go to the root of the prosecution, then the Court can consider, otherwise the Court has to ignore and accept the evidence of the 78 - - prosecution. The criminal jurisprudence attaches great weightage to the evidence of the persons injured in the same occurrence as it presumes that he or they speak the truth unless it is shown otherwise. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Chandrashekar & Another Vs. State, reported in (2017)13 SCC585 At paragraphs-8 to 16 it has been observed as under:- “8. We have considered the submissions on behalf of the parties, and perused the evidence on record. The deceased was the brother of appellants Balasubramanium and Govindaraj. Appellant Chandrashekharan is the son of Govindaraj. PW2Lakshmi is the wife of the deceased and PW3Udaychandran is the son of her elder sister. PW1is the brother of PW2Lakshmi. Relations between the deceased and the appellants were far from cordial, whether it be their dissatisfaction with the sale of lands by the deceased to PW1Lalbahadur Sastri or the acquittal of the deceased the previous day, in a criminal prosecution under Sections 307, 324 79 - - IPC by appellant Govindaraj. The appellants came together armed at the place of occurrence in a car. Their utterances before a merciless assault primarily on the head, that acquittal by the Court would bring no succour to the deceased, reflects a state of preparedness and is an expression of the intention that they were determined to do away with the deceased. The intention to cause death, along with motive, therefore, stands established.
9. PW1Lalbahadur Sastri deposed that upon return to the fields after delivering milk, he saw a white Maruti car standing. The witness therefore had ample opportunity to identify the vehicle including the registration number of the same. Additionally, the parties being related to each other, the witness being acquainted with the vehicle owned by the appellants shall be a natural presumption in accordance with human behaviour. The appellants then assaulted the deceased mercilessly and repeatedly on the head. Balasubramanian assaulted with a hammer, Chandrasekharan with an “aruval”, which is a type of a “billhook” and Govindaraj with an iron rod. The number of injuries on the head of the deceased is sufficient to conclude the 80 - - nature of murderous assault made by all the appellants. No suggestion was given to the witness that he was not present at the time of assault and that he was not injured in the same occurrence. It establishes his credibility and reliability as an eyewitness speaking the truth. Since he was an eyewitness to the assault which took place in broad daylight, and the number of injuries makes it evident that it continued for some time, there is nothing suspicious in his evidence when he describes the manner, nature and weapon of assault by each of the appellants.
10. Criminal jurisprudence attaches great weightage to the evidence of a person injured in the same occurrence as it presumes that he was speaking the truth unless shown otherwise. Though the law is well settled and precedents abound, reference may usefully be made to Brahm Swaroop v.State of U.P. [Brahm Swaroop v. State of U.P., (2011) 6 SCC288: (2011) 2 SCC (Cri) 923]. observing as follows: (SCC p. 302, para
28) “28. Where a witness to the occurrence has himself been injured in the incident, the 81 - - testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with an in-built guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.
11. The failure of the prosecution to place the injury report of the witness from Udumalpet Government Hospital, where he was first taken for treatment is a lacuna, but cannot be held to be fatal as to doubt the entire prosecution case or shake the credibility of the witness. It cannot lead to any conclusion of his injury report, Ext. P- 6 from Ramakrishna Hospital being fabricated. No such suggestion was made by the defence to PW12Dr Krishnaraj. The appellants are named in the FIR registered soon after the occurrence. The fact that the witness may have stated of assault by two known persons to PW12 without naming any of the appellants is inconsequential. The doctor was a prosecution witness for the limited purpose of the injury report and not a prosecution witness with regard to the occurrence. The observations in Pattipati Venkaiah v. State of A.P.[Pattipati Venkaiah v. State of A.P., (1985) 4 SCC80:
82. - - 1985 SCC (Cri) 464]. as follows are considered relevant: (SCC pp. 84-85, para
17) “17. Another argument advanced before us was that although PWs 1 and 2 were supposed to be eyewitnesses, they never cared to disclose the name of the assailant to the doctor when the body of the deceased was taken to the hospital. This argument is only stated to be rejected. A doctor is not at all concerned as to who committed the offence or whether the person brought to him is a criminal or an ordinary person, his primary effort is to save the life of the person brought to him and inform the police in medicolegal cases. In this state of confusion, PWs 1 and 2 may not have chosen to give details of the murder to the doctor. It is well settled that doctors before whom dead bodies are produced or injured persons are brought, either themselves take the dying declaration or hold the post- mortem immediately and if they start examining the informants they are likely to become witnesses of the occurrence which is not permissible.
12. The fact that the witness may be related to the deceased by marriage, cannot be sufficient 83 - - reason to classify him as a related and interested witness to reject his testimony. It may only call for greater scrutiny and caution in consideration of the same. The animosity of the appellants was primarily with the deceased on account of his acquittal the previous day, in the criminal prosecution. The transfer of lands by the deceased in favour of the witness, being a completed transaction, is considered too remote a circumstance for enmity between the appellants and the witness as a ground for false implication. In any event, because of the reliable ocular evidence available, motive loses much of its relevance in the facts of the case.
13. PW1Lalbahadur Sastri deposed that on the fateful morning he along with PW2Lakshmi and PW3Udayachandran and the deceased came together to the fields on two motorcycles. Evidently, he did not see either of the latter witnesses at that time as they may have been behind the car parked facing south. PW2Lakshmi also deposed that they all came to the fields together on two motorcycles along with the deceased. PW1Lalbahadur Sastri left to deliver milk and returned after doing so when the attack took place. The two witnesses at that time 84 - - were in the residential shed and came running on hearing cries of distress. The fact that PW2Lakshmi and PW3Udaychandran were also eyewitnesses to the occurrence therefore stands well established. PW2Lakshmi being the wife of the deceased, we find no reason why she would not be speaking the truth with regard to the real assailants instead of shielding them by false implication. The fact that she had the courage to name her own in-laws as the assailants is also a factor which speaks of the reliability of her evidence. The trial Judge has rightly believed them to be eyewitnesses. PW4Ramachandran, the astrologer, an independent witness, referred to by PW3Udaychandran as also having been present deposed of the appellants attacking the deceased. The fact that in his cross-examination he may have stated that he was not aware how the appellant and PW1Lalbahadur Sastri sustained injuries cannot classify him either as a hostile or completely unreliable witness.
14. The appellants came together armed with a hammer, sickle and iron rod respectively. They assaulted the deceased indiscriminately on the head repeatedly, a very sensitive part of the human body reflecting the individual intention of 85 - - each one of them to ensure the death of the deceased. The number of injuries caused on the head speaks for itself regarding the intention of the appellants. There is no need for us to consider and examine issues of common intention, in the facts of the case.
15. In view of the clear ocular evidence available, issues with regard to the confession statement and recovery of the weapons of assault need not be considered for corroboration.
16. In the facts and circumstances of the case, we, therefore, find no reason to interfere with the conviction of the appellants. Their bail bonds are cancelled and they are directed to surrender forthwith for serving out their remaining period of sentence. The appeals are dismissed.
33. Keeping in view the above proposition of law and on perusal of the evidence of the eye witnesses there are specific overt acts as against accused Nos.1 to 7, 9 to 14, 16, 24 and 26. The injured eye witnesses have clearly stated about their overt acts. PW.1 is none other than the wife of the deceased Nagaraja Gouda and others are also 86 - - family members and the evidence of these witnesses is also corroborated with the evidence of PW.33, the doctor who has conducted autopsy over the dead body of the deceased Nagaraja Gouda. As per the PM report and the evidence of PW.33 all the wounds found over the body of the deceased Nagaraja Gouda are chop wounds and the doctor has also opined that the injuries mentioned might have been caused by the articles examined by him. He has also given the opinion of the articles examined as per Ex.P49. In that light, there are no good grounds made out so as to reject the evidence of PWs.1 to 6. It is well settled proposition of law that if the case rests on the evidence of eye witnesses even including the sole eye witness, conviction can be founded if otherwise the evidence of the said witnesses is found to be reliable and acceptable. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Jai Prakash Vs. State (Delhi Administration), reported in (1991)2 SCC32 At paragraph-6 it has been observed as under:- 87 - - “6. As hereinbefore mentioned, the learned counsel for the appellant submitted that the evidence of PW2on which the case entirely rests, cannot be accepted. We have gone through his evidence carefully as well as that of PWs 1 and 5. The evidence of PW2does not suffer from any serious infirmity. At any rate there is other corroborative evidence also. We see absolutely no reason to disagree with the findings of the courts below regarding their evidence.
34. Though it is contended by the learned Senior Counsel that the independent witnesses have not supported the case of the prosecution and in that light the evidence of the related witnesses has to be rejected, merely because the neighbouring witnesses have not supported the case of the prosecution or they have not been examined, it cannot be held that the prosecution has utterly failed to prove its case. As stated above, when the presence of the said witnesses is not doubtful at the place of occurrence and even during the course of cross- 88 - - examination, it has not been disputed, then under such circumstances, the same can be accepted. The Hon’ble Apex Court by relying upon the decision in the case of Kuldip Yadav Vs. State of Bihar, reported in (2011)5 SCC324has reiterated the ratio in subsequent case in State of Rajasthan Vs. Arjun Singh and others, quoted supra. At paragraphs-28 and 29 it has been observed as under:- “28. Mr Bajwa, learned Senior Counsel for the accused, by pointing out certain contradictions, submitted that it is not safe to convict the accused based on his evidence. It is also pointed out that Raj Singh (PW2 is a highly interested witness and closely related to the eyewitnesses. It was further pointed out that in the absence of any neighbour, conviction based on the testimony of PW2alone is not sustainable. In the light of the above submissions, we have carefully scrutinised the evidence of PW2 First of all, merely because the witness is related to eyewitnesses or the family of the deceased is not a ground for rejection (vide Kuldip Yadav v. 89 - - State of Bihar [(2011) 5 SCC324: (2011) 2 SCC (Cri) 632]. ). It was also held that merely because the prosecution has not examined neighbours, it cannot be claimed that it is fatal to their case, when the evidence of eyewitnesses examined on their side is found to be acceptable and reliable.
29. Raj Singh (PW2, in his evidence, in categorical terms has asserted that he saw five to seven persons standing on the roof of the house of Karan Singh. He had specifically mentioned the names of those persons as Bahadur Singh, Shivraj Singh, Banney Singh, Smt Swaroop Bai, Smt Gyan Kanwar, Smt Bhagwan Kanwar, Gajendra Singh and Karan Singh. Inasmuch as in the parchabayan (Ext. P- 32), only the name of Arjun Singh and as per Ext. P-22 the names of Arjun Singh and Banney Singh were mentioned, who were present on the roof at the relevant time, as rightly observed by the High Court, the claim of Raj Singh (PW2 that all the accused persons were standing on the roof is not believable, however, his assertion that two persons, Arjun Singh and Banney Singh were on the roof cannot be denied. Even if we eschew a certain portion from the evidence of PW90- - 2, his assertion and the statement regarding the involvement of Arjun Singh, Shivraj Singh and Banney Singh cannot be disputed. In categorical terms, he explained the role played by these persons. It is clear from his evidence that he received gunshot injuries which is also supported by the medical evidence. In view of the same, his presence at the time of occurrence cannot be disputed and is found to be proved. This is also strengthened from his statement in the parchabayan (Ext. P-32) and Ext. P-22 statement given to the Judicial Magistrate (PW18.
35. We have given thoughtful consideration to the submissions made on behalf of both parties. As could be seen from the statement of the accused under Section 313 of Cr.P.C., they have not made out any such case so as to discard the evidence of the injured eye witnesses. In that light, the contention of the learned Senior Counsel is not acceptable and it can be safely held that the prosecution has proved the case as it alleged. 91 - - 36. Though the prosecution has proved the alleged incident, one more question which arises for our consideration is “Whether all the accused persons were members of the unlawful assembly and with a common object they have committed the alleged offence and as such they are held liable under Section 149 of IPC?.
37. It is the specific contention of the learned Senior Counsel that the names of some of the accused persons have been found in the complaint and subsequently when the charge sheet has been filed some more persons have been included though the complainant and the injured have not referred to their names and overt acts. It is his further submission that mere presence of the accused persons at the place of incident does not make a person a member of an unlawful assembly and such person cannot be convicted for any of the offences charged with the aid and assistance of Section 149 of IPC. 92 - - 38. We have given our thoughtful consideration to the said submission. It is well settled proposition of law that Section 149 of IPC is like a principle of vicarious liability. If an offence has been committed by any member of the unlawful assembly in prosecution of the common object of the said assembly or being the member of the assembly, then though there is no overt act, vicariously the accused persons can be held liable. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Ramachandran & Others Vs. State of Kerala, reported in (2011)3 SCC (Cri) 677. At paragraphs-17, 18 and 19 it has been observed as under:- “17. Section 149 IPC has essentially two ingredients viz. (i) offence committed by any member of an unlawful assembly consisting of five or more members, and (ii) such offence must be committed in prosecution of the common object (under Section 141 IPC) of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object. 93 - - 18. For “common object”, it is not necessary that there should be a prior concert in the sense of a meeting of the members of the unlawful assembly, the common object may form on the spur of the moment; it is enough if it is adopted by all the members and is shared by all of them.
19. In order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. (Vide Bhanwar Singh v. State of M.P. [(2008) 16 SCC657: (2010) 4 SCC (Cri) 378]. ) Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under the second part of Section 149 IPC if it can be held that the offence was such as the members knew was likely to be committed. The expression “know” does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that if a body of persons go armed to take forcible possession of the land, it would be right to say that someone is likely to be killed and all the members of the unlawful 94 - - assembly must be aware of that likelihood and would be guilty under the second part of Section 149 IPC. There may be cases which would come within the second part, but not within the first. The distinction between the two parts of Section 149 IPC cannot be ignored or obliterated. (See Mizaji v. State of U.P.[AIR1959SC572:
1959. Cri LJ777 and Gangadhar Behera v. State of Orissa [(2002) 8 SCC381:
2003. SCC (Cri) 32 : AIR2002SC3633 .)
39. Keeping in view the ratio laid down in the aforesaid decision and on perusal of provisions of Section 149 of IPC, the essential feature which must be there is common object of the persons forming unlawful assembly. Whether the object is in their mind when they came together or whether it occurs to them afterwards is immaterial. It is also held that object should be common to the persons who compose the assembly and the offences which have been committed to accomplish the common object of the assembly or was one which the member knew likely to be committed is essential. It is also held that 95 - - there must be a nexus between the common object and the offence committed. If that aspect has been proved, then under such circumstances, every member of the assembly is held liable equally. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Radha Mohan Singh @ Lal Saheb & Others Vs. State of U.P., reported in (2006)2 SCC450 At paragraphs-21 and 22 it has been observed as under:- “21. The question arises whether the conviction of the remaining accused under Section 302 read with Section 149 IPC is legally sustainable. The scope of Section 149 IPC was explained in Mizaji v. State of U.P. [1959 Supp (1) SCR940: AIR1959SC572:
1959. Cri LJ777 which decision has been followed in many later cases, in the following manner: (SCR p.
949) The first part of Section 149 IPC means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a 96 - - preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression “know” does not mean a mere possibility, such as might or might not happen. Though it can be said that when an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object that does not make the converse proposition true; there may be cases which would come within the second part, but not within the first. The distinction between the two parts of Section 149, Penal Code, 1860 cannot be ignored or obliterated. In every case it would 97 - - be an issue to be determined whether the offence committed falls within the first part of Section 149 as explained above or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. (AIR p.
572) 22. In Allauddin Mian v. State of Bihar [(1989) 3 SCC5:
1989. SCC (Cri) 490 : AIR1989SC1456 the import of Section 149 IPC was explained as under: (SCC pp. 16-18, para
8) “This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was/were committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposes a constructive penal liability, it must be safely construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly. What is important in each case is to find out if 98 - - the offence was committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed. There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same. Therefore, any offence committed by a member of an unlawful assembly in prosecution of any one or more of the five objects mentioned in Section 141 will render his companions constituting the unlawful assembly liable for that offence with the aid of Section 149 IPC. … It is not the intention of the legislature in enacting Section 149 to render every member of an unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to invoke Section 149 it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. Even if an act incidental to the common object is committed to accomplish the common object of the unlawful assembly it must be within the knowledge of other members as one likely to be committed in prosecution of the 99 - - common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object they would be liable for the same under Section 149 IPC.
40. On going through the decision quoted supra, it enumerates that number of persons involved in commission of offence, is an important object and common object could be formed on spur of moment and does not require any prior deliberations. To consider the said aspect, whether the said assembly was unlawful assembly with common object, the Court has to appreciate the entire evidence placed before the Court and if there are basic relevant factors present, the Court has to assess the conduct adopted, their behaviour during and after the incident, arms carried are some of objects which are to be taken into consideration to determine as to whether the accused persons had common object or not. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Manjit Singh Vs. State of Punjab, 100 - - reported in (2019)8 SCC529 At paragraphs-14.1 to 14.5 it has been observed as under:- “14.1. The relevant part of Section 141 IPC could be usefully extracted as under: “141. Unlawful assembly.—An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is— *** Third.—To commit any mischief or criminal trespass, or other offence; or *** Explanation.—An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.
14.2. Section 149, rendering every member of unlawful assembly guilty of offence committed in prosecution of common object reads as under: “149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.—If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that 101 - - assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
14.3. We may also take note of the principles enunciated and explained by this Court as regards the ingredients of an unlawful assembly and the vicarious/constructive liability of every member of such an assembly. In Sikandar Singh [Sikandar Singh v. State of Bihar, (2010) 7 SCC477: (2010) 3 SCC (Cri) 417]. , this Court observed as under: (SCC pp. 483-85, paras 15 & 17-18) “15. The provision has essentially two ingredients viz. (i) the commission of an offence by any member of an unlawful assembly, and (ii) such offence must be committed in prosecution of the common object of the assembly or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. Once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be 102 - - shown to have committed some overt act. For the purpose of incurring the vicarious liability for the offence committed by a member of such unlawful assembly under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object. *** 17. A “common object” does not require a prior concert and a common meeting of minds before the attack. It is enough if each member of the unlawful assembly has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The “common object” of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of 103 - - attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful.
18. In Masalti v. State of U.P. [Masalti v. State of U.P., AIR1965SC202: (1965) 1 Cri LJ226 a Constitution Bench of this Court had observed that: (AIR p. 211, para
17) ‘17. … Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically 104 - - brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.’
14.4. In Subal Ghorai [Subal Ghorai v. State of W.B., (2013) 4 SCC607: (2013) 2 SCC (Cri) 530]. , this Court, after a survey of leading cases, summed up the principles as follows: (SCC pp. 632-33, paras 52-53) “52. The above judgments outline the scope of Section 149 IPC. We need to sum up the principles so as to examine the present case in their light. Section 141 IPC defines “unlawful assembly” to be an assembly of five or more persons. They must have common object to commit an offence. Section 142 IPC postulates that whoever being aware of facts which render any assembly an unlawful one intentionally joins the same would be a member thereof. Section 143 IPC provides for punishment for being a member of unlawful assembly. Section 149 IPC provides for constructive liability of every person of an unlawful assembly if an offence is committed by any member thereof in 105 - - prosecution of the common object of that assembly or such of the members of that assembly who knew to be likely to be committed in prosecution of that object. The most important ingredient of unlawful assembly is common object. Common object of the persons composing that assembly is to do any act or acts stated in clauses “First”, “Second”, “Third”, “Fourth” and “Fifth” of that section. Common object can be formed on the spur of the moment. Course of conduct adopted by the members of common assembly is a relevant factor. At what point of time common object of unlawful assembly was formed would depend upon the facts and circumstances of each case. Once the case of the person falls within the ingredients of Section 149 IPC, the question that he did nothing with his own hands would be immaterial. If an offence is committed by a member of the unlawful assembly in prosecution of the common object, any member of the unlawful assembly who was present at the time of commission of offence and who shared the common object of that assembly would be liable for the commission of that offence even if no overt act was committed by him. If a large crowd of persons armed with 106 - - weapons assaults intended victims, all may not take part in the actual assault. If weapons carried by some members were not used, that would not absolve them of liability for the offence with the aid of Section 149 IPC if they shared common object of the unlawful assembly.
53. But this concept of constructive liability must not be so stretched as to lead to false implication of innocent bystanders. Quite often, people gather at the scene of offence out of curiosity. They do not share common object of the unlawful assembly. If a general allegation is made against large number of people, the court has to be cautious. It must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. Unless reasonable direct or indirect circumstances lend assurance to the prosecution case that they shared common object of the unlawful assembly, they cannot be convicted with the aid of Section 149 IPC. It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages. The court must have 107 - - before it some materials to form an opinion that the accused shared common object. What the common object of the unlawful assembly is at a particular stage has to be determined keeping in view the course of conduct of the members of the unlawful assembly before and at the time of attack, their behaviour at or near the scene of offence, the motive for the crime, the arms carried by them and such other relevant considerations. The criminal court has to conduct this difficult and meticulous exercise of assessing evidence to avoid roping innocent people in the crime. These principles laid down by this Court do not dilute the concept of constructive liability. They embody a rule of caution.
14.5. We need not expand on the other cited decisions because the basic principles remain that the important ingredients of an unlawful assembly are the number of persons forming it i.e. five; and their common object. Common object of the persons composing that assembly could be formed on the spur of the moment and does not require prior deliberations. The course of conduct adopted by the members of such assembly; their behaviour before, during, and 108 - - after the incident; and the arms carried by them are a few basic and relevant factors to determine the common object.
41. Subsequently similar issue has also come up before the Hon’ble Apex Court and therein it has been observed that such act of the accused was committed in prosecution of the common object of the assembly and the member of the assembly knew, then the offence is likely to be committed in prosecution of the common object or some of the factors determine the circumstances. This aspect has been dealt by the Hon’ble Apex Court in the case of Bal Mukund Sharma @ Balmukund Chaudhry & Others V. State of Bihar, reported in (2019)5 SCC469 At paragraph-24, it has been observed as under:- “24. We may now address the aspect of the constructive liability of the accused Kapildeo Chaudhry, Mahendra Rai, Babulal Chaudhry, Bhavesh Chaudhry and Anil Chaudhry for the murder of the deceased. It is well settled that to determine whether an accused, being a member of an unlawful assembly, is liable for a given 109 - - offence, it needs to be seen whether such act was committed in prosecution of the common object of the assembly, and alternatively whether the members of the assembly knew that the offence was likely to be committed in prosecution of such common object. This, in turn, has to be determined from the facts and circumstances of each case. (See Dharam Palv. State of U.P. [Dharam Pal v. State of U.P., (1975) 2 SCC596:
1975. SCC (Cri) 704]. ; Roy Fernandes v. State of Goa [Roy Fernandes v. State of Goa, (2012) 3 SCC221: (2012) 2 SCC (Cri) 111]. .)
42. We have elaborately discussed the proposition of law as to under what circumstances the accused can be held liable by taking the shelter under Section 149 of IPC. On perusal of the case of the prosecution, the motive of the case is that the deceased was not leaving the canal water and there used to be a galata and accused persons came there to the house of the deceased with common object to take away the life of the deceased so as to put an end to the said problem. As could be seen from the contents of 110 - - the complaint at Ex.P1, the names of accused Nos.1 to 7 are appearing. On perusal of the evidence of PW.1 she has deposed that accused Nos.1 to 7, 10, 11, 13, 14 and 26 came there in a group holding macchu, axe and cart-pegs and have entered into her house by abusing and she has also stated the overt acts of accused Nos.1 to 7, 10, 11, 13, 14, 16, 24 and 26. So also in the evidence of PW.2 she has stated the overt acts of the above said accused persons. It is not in dispute that the deceased Nagaraja Gouda died in the alleged incident and PWs.1 to 3 have suffered with injuries. When they have categorically stated about their presence and their actual participation is also stated before the Court, then under such circumstances, the Court can safely hold that the aforesaid accused persons have come to the house of the deceased with common object to take away the life of the deceased and have also assaulted the injured. As discussed above, it is not necessary that there must be prior consult or their meeting prior to unlawful assembly. Even the object might have been on the spur of 111 - - moment and if the accused persons have adopted the same method which has been adopted by all the members and have shared the same, then they are held to be liable. In that light, accused Nos.1 to 7, 10, 11, 13, 14, 16, 24 and 26 are liable to be convicted though they may not have directly assaulted the deceased. There are specific overt acts for they having participated in the said criminal activities.
43. At this juncture the learned Senior Counsel tried to point out that the contents of the complaint show only seven persons, but the case has been registered against 26 persons and it indicates that the other accused persons have been falsely implicated and they have been planted. But it is well settled proposition of law that mistakes in filing the complaint are not a ground to discard the entire complaint. This proposition of law has been laid down in the case of Mallappa Siddappa Alkanur & others Vs. State of Karnataka, reported in 2009 (3) Crimes 230 (SC). At paragraph-16 it has been observed as under:- 112 - - 16. We have, ourselves, seen the cross- examination and very strangely, the witness was asked the questions about the actual assaults in his cross-examination, thereby actually admitting his presence at the spot. He explained in his cross- examination that A-3 and A-4 attacked the boy and threw him down on the ground and he identified the accused even at that time. His not shouting can also be explained that he was feeling extremely apprehensive on account of such dastardly attack on the deceased, who was his friend. Graphic description as to how the attack was made by A-1 and A-2 with the help of A-3 and A-4 has come in Para 7, in his cross-examination. The omissions brought out in Para 9 are also of miniscule nature. His story that A-3 and A-4 whisked away the deceased and thereafter, overpowered him and A-1 and A-2 committed the dastardly attack on the helpless boy, however remained unshaken throughout the cross- examination.
44. It is held in catena of decisions by the Hon’ble Apex Court that complaint and FIR are not encyclopedia. Omission of facts is not fatal. In that light, we want to rely 113 - - upon a decision in the case of Manjit Singh Vs. State of Rajasthan, reported in 2012 (3) Crimes 192 (SC). At paragraphs-13 and 14 it has been observed as under:- “13. We are unable to agree. The fact that the assault by the bottle on Hemant is not mentioned in the parcha bayan is, at best, an omission and it does not in any way affect the veracity of PW2 not to say the other three eyewitnesses. As a matter of fact, in the cross- examination a question was put to PW2regarding this omission in the parcha bayan and he said that at the time the parcha bayan was recorded he was in shock and was being administered intravenous drip. He was, therefore, not in a position to give a detailed account of the occurrence and he simply stated about the main assault by knives.
14. In any event, the omission in the FIR would not, in any way, affect the depositions of PWs 1, 3 and 4. Mr Mehrotra was unable to show that those three witnesses had not mentioned about the assault on Hemant by bottle in their statements recorded under Section 161 of the Code of Criminal Procedure.” 114 - - Yet another decision in the case of Harijan Jivarajbhai Badhabhai Vs. State of Gujarat, reported in 2017 (1) Crimes 214 (SC). At paragraph-12 it has been observed as under:- “12. We have considered the rival submissions and have gone through the testimony of the eyewitnesses and other material on record. It is true that even before the registration of FIR the inquest was undertaken and the post-mortem was conducted. In this case, the assault was made right in the courtroom which called for immediate action on part of the investigators to clear the courtroom as early as possible. The investigating officer had initially requested the Presiding Officer to lodge a complaint. Upon his refusal, the investigating officer then had to make enquiries and record the complaint of PW30Bhanji. In the meantime, if inquest was undertaken and the body was sent for post- mortem, we do not see any infraction which should entail discarding of the entire case of prosecution. We also do not find anything wrong if the first informant soon after the recording of the 115 - - assailant corrected himself, as a result of which name of the third assailant came to be dropped. So long as the version coming from the eyewitnesses inspires confidence and is well corroborated by the material on record, any such infraction, in our view would not demolish the case of the prosecution in entirety.
45. We are conscious of the fact that sometimes because of some animosity though the person was present and has not committed any offence, in order to rope up all the members of the family, there may be false implication, which also cannot be overruled. The Hon’ble Apex Court in the case of Ramesh Harijan Vs. State of Uttar Pradesh, reported in (2012)5 SCC777by relying upon a decision in the case of Balaka Singh Vs. State of Punjab; and Zwinglee Ariel Vs. State of M.P., has observed that the Court while appreciating the evidence, has to separate the grain from chaff. At paragraph-26 it has been observed as under:- “26. In Balaka Singh v. State of Punjab [(1975) 4 SCC511:
1975. SCC (Cri) 601 :
116. - - AIR1975SC1962 , this Court considered a similar issue, placing reliance upon its earlier judgment in Zwinglee Ariel v. State of M.P. [AIR1954SC15:
1954. Cri LJ230 and held as under: (Balaka Singh case [(1975) 4 SCC511:
1975. SCC (Cri) 601 : AIR1975SC1962 , SCC p. 517, para
8) “8. … the court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation, the court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply.
46. Keeping in view the ratio laid down and after applying the principle laid down by the Hon’ble Apex Court with reference to common object, as could be seen from the 117 - - case of the prosecution, the prosecution got examined PW.10 to show that the accused persons have conspired in the house prior to the alleged incident. But the said witness has not supported the case of the prosecution and he has been treated as hostile. Even in the absence of any such evidence, the Court can infer whether the accused persons have conspired to pursue the common object on the basis of the overt acts of the accused persons at the time of the alleged incident. In order to make a person as a member of an unlawful assembly, the prosecution has to show that he has done something or omitted to do something which should make him as a member of unlawful assembly or unless it falls under Section 141 of IPC. A detailed discussion has been held by the Hon’ble Apex Court in the case of Baladin & Others Vs. State of Uttar Pradesh, reported in AIR1956SC181 At paragraph-19 it has been observed as under:- “19. The learned counsel for the appellants raised four questions before us, namely, (1) that 118 - - the courts below were in error in relying upon the evidence of the four eye-witnesses aforesaid when their statements in court were at variance with their statements as recorded by the investigating Sub-Inspector; (2) that the courts below were in error in convicting and sentencing the appellants on the testimony of those four eyewitnesses when their evidence had not been acted upon in respect of the other accused who had been acquitted by the courts below; (3) that the evidence of those four eyewitnesses having been disbelieved by the lower appellate court, particularly in respect of some of those accused persons to whom they had attributed specific parts, should not have been accepted in respect of those accused to whom no such parts had been assigned; and (4) that the courts below had erred in law in convicting those accused persons against whom no specific parts had been deposed to and whose mere presence in the assembly had been penalized.
47. On perusal of the case of the prosecution, the admitted fact is that the alleged incident has taken place in the house of PW.1 and PWs.1 to 6 were also present and 119 - - there was sufficient light to identify each of the accused persons and they have also categorically stated the overt acts of the above said accused persons. Even the complaint has also been registered without much delay. In that light, accused Nos.1 to 7, 10, 11, 13, 14, 16, 24 and 26 are held liable under Section 149 of IPC.
48. It is well settled proposition of law that while appreciating the evidence, contradictions, inconsistencies, exaggeration or embellishments are common phenomena where the witnesses are rustic and can develop a tendency of exaggerating the thing, that does not mean that entire testimony of such witnesses is falsehood. Minor contradictions are not fatal to the case of the prosecution. In that light, we want to rely upon a decision in the case of Pradhu Dayal Vs. State of Rajasthan, reported in (2018)8 SCC127 At paragraphs-18 to 21 it has been observed as under:- “18. It is a common phenomenon that the witnesses are rustic and can develop a tendency 120 - - to exaggerate. This, however, does not mean that the entire testimony of such witnesses is falsehood. Minor contradictions in the testimony of the witnesses are not fatal to the case of the prosecution. This Court, in State of U.P. v. M.K. Anthony [State of U.P. v. M.K. Anthony, (1985) 1 SCC505:
1985. SCC (Cri) 105]. , held that inconsistencies and discrepancies alone do not merit the rejection of the evidence as a whole. It stated as follows: (SCC p. 514-15, para
10) “10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the 121 - - evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross- examination is an unequal duel between a rustic and refined lawyer. Having examined the evidence of this witness, a friend and well- wisher of the family carefully giving due weight to the comments made by the learned counsel for the respondent and the reasons assigned to by the High Court for rejecting his evidence simultaneously keeping in view the appreciation 122 - - of the evidence of this witness by the trial court, we have no hesitation in holding that the High Court was in error in rejecting the testimony of witness Nair whose evidence appears to us trustworthy and credible.” (emphasis supplied) 19. In State of U.P. v. Anil Singh [State of U.P. v. Anil Singh, 1988 Supp SCC686:
1989. SCC (Cri) 48]. , this Court observed that: (SCC p. 692, para
17) “17. … invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses.
20. The Court can separate the truth from the false statements in the witnesses' testimony. InLeela Ram v. State of Haryana [Leela Ram v. State of Haryana, (1999) 9 SCC525:
123. - - 2000 SCC (Cri) 222]. , this Court held as follows: (SCC p. 534, para
12) “12. It is indeed necessary to note that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment — sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their overanxiety they may give a slightly exaggerated account. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same.
21. Moreover, it is not necessary that the entire testimony of a witness be disregarded because one portion of such testimony is false. This Court observed thus in Gangadhar Behera v. State of Orissa [Gangadhar Behera v. State of Orissa, (2002) 8 SCC381:
2003. SCC (Cri) 32]. : (SCC p. 392, para
15) 124 - - “15. To the same effect is the decision in State of Punjab v. Jagir Singh [State of Punjab v. Jagir Singh, (1974) 3 SCC277:
1973. SCC (Cri) 886 : AIR1973SC2407 andLehna v. State of Haryana [Lehna v. State of Haryana, (2002) 3 SCC76:
2002. SCC (Cri) 526]. . Stress was laid by the appellant-accused on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out the entire prosecution case. In essence prayer is to apply the principle of falsus in uno, falsus in omnibus (false in one thing, false in everything). This plea is clearly untenable. Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of a particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in 125 - - uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim falsus in uno, falsus in omnibus has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded.
49. Even on perusal of the evidence, presence of the above said accused persons has not been disputed. Even they have not denied their presence and they also came to the spot with lethal weapons and participated in the crime. If they were really not having common object, definitely they could have tried to prevent the miscreant act by the other accused persons. In that light also the abovesaid accused persons are held liable. In so far as accused Nos.8, 9, 12, 15, 17 to 23, and 25 are concerned, no serious overt acts have been alleged as against them for having participated in the crime. Even their presence at the place of occurrence has not been specifically brought. In that 126 - - light, the trial Court has not taken much strain to separate the grain from chaff and find out before making them liable.
50. The learned Senior Counsel vehemently argued and contended by giving much stress and reference to the contents of the complaint and various discrepancies. But it is well settled proposition of law that if the minor contradictions are there and contradictions are not material contradictions so as to take away the case of the prosecution, then the same can be ignored and it can be held that the prosecution has proved the guilt of the accused. 51.It is the submission of the learned Senior Counsel that the recovery of the incriminating material at the instance of the accused persons has not been proved by the prosecution since the recovery mahazar witnesses have not supported the case of the prosecution and they have been treated as hostile. It is his further submission that 127 - - the articles have been seized from the side of the door which is an accessible place. Normally, the accused persons will not keep the weapons used in an accessible place that itself shows that the said weapons have been planted by the Investigating Agency. PWs.18 to 29 are the witnesses for the recovery of the lethal weapons and incriminating material at the instance of accused Nos.8, 14, 23, 11, 10, 16, 26, 4, and 1. But all these witnesses have not supported the case of the prosecution and they have been treated as hostile. Another contention of the learned Senior Counsel is that prosecution has only produced serology report and has not examined the Chemical Examiner. Non-examination of the chemical examiner and mere marking of the serology report will not help to the case of the prosecution. In that light, he has relied upon the decision in the case of LIC of India and another Vs. Ram Pal Singh Bisen reported in (2010) 4 SCC491 At paragraphs-24, 26 and 31 it has been held as under:- 128 - - “24. The appellants, even though a defaulting party, committed breach and failed to carry out a legislative imposition, then had still to convince this Court as to what was the just cause for doing the same. Thus, looking to the matter from any angle, it is fully established that the appellants had miserably failed to prove and establish their defence in the case.” “26. As has been mentioned hereinabove, despite perusal of the record, we have not been able to come to know as to under what circumstances the respondent-plaintiff had admitted those documents. Even otherwise, his admission of those documents cannot carry the case of the appellants any further and much to the prejudice of the respondent.” “31. Under the law of evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the 129 - - Evidence Act cannot be relied upon by the court. Contents of the document cannot be proved by merely filing in a court.
52. It is further submitted that if there is no link established between the blood found on the seized articles and blood of the deceased and the other injured witnesses, benefit of doubt has to be given to the accused. He has also relied upon the decision in the case of Sunil Kundu and Another Vs. State of Jharkhand reported in (2013) 4 SCC422 At paragraphs-2 and 29 it has been observed as under:- “2. This case is a glaring example of how cause of justice can be defeated by inefficient, lackadaisical and incompetent investigating agency. As we go ahead, the reasons for these observations would be clear.” “29. We began by commenting on the unhappy conduct of the investigating agency. We conclude by reaffirming our view. We are distressed at the way in which the investigation 130 - - of this case was carried out. It is true that acquitting the accused merely on the ground of lapses or irregularities in the investigation of a case would amount to putting premium on the deprecable conduct of an incompetent investigating agency at the cost of the victims which may lead to encouraging perpetrators of crimes. This Court has laid down that the lapses or irregularities in the investigation could be ignored subject to a rider. They can be ignored only if despite their existence, the evidence on record bears out the case of the prosecution and the evidence is of sterling quality. If the lapses or irregularities do not go to the root of the matter, if they do not dislodge the substratum of the prosecution case, they can be ignored. In this case, the lapses are very serious. PW5Jaldhari Yadav is a pancha to the seizure panchnama under which weapons and other articles were seized from the scene of offence and also to the inquest panchnama. Independent panchas have not been examined. The investigating officer has stated in his evidence that the seized articles were not sent to the court along with the charge- sheet. They were kept in the malkhana of the police station. He has admitted that the seized 131 - - articles were not sent to the forensic science laboratory. No explanation is offered by him about the missing sanha entries. His evidence on that aspect is evasive. Clothes of the deceased were not sent to the forensic science laboratory. The investigating officer admitted that no seizure list of the clothes of the deceased was made. Blood group of the deceased was not ascertained. No link is established between the blood found on the seized articles and the blood of the deceased. It is difficult to make allowance for such gross lapses. Besides, the evidence of eyewitnesses does not inspire confidence. Undoubtedly, a grave suspicion is created about the involvement of the accused in the offence of murder. It is well settled that suspicion, however strong, cannot take the place of proof. In such a case, benefit of doubt must go to the accused. In the circumstances, we quash and set aside the impugned judgment and order [Sunil Kundu v. State of Jharkhand, Criminal Appeal No.1762 of 2004, decided on 20-8-2007 (Jhar)]. . The appellant-accused are in jail. We direct that the appellants A-1 Sunil Kundu, A-2 Bablu Kundu, A-3 Nageshwar Prasad Sah and A-4 132 - - Hira Lal Yadav be released forthwith unless otherwise required in any other case.
53. We have carefully and cautiously gone through the decisions quoted by the learned Senior Counsel by giving our thoughtful consideration. We are not having any difference of opinion with regard to the aforesaid proposition of law. Mere marking of a document is not a proof, but the said observation has been made in the case of LIC of India and another Vs. Ram Pal Singh Bisen, quoted supra with reference to civil cases and as such it cannot be held that the same yardstick can be applicable to the criminal prosecution. Even as could be seen from the said decisions, a grave suspicion has been created about the involvement of the accused persons in the offence of murder and implication was also on suspicion and the seized articles were not sent for FSL for examination. In that light, the Hon’ble Apex Court has given the benefit. But in the case on hand, the evidence produced clearly goes to show that there is a consistency in 133 - - the evidence of PWs.1 to 6. Though PW.3 has not been further examined, even ignoring his evidence, in the evidence of PWs.1, 2 and 4 to 6 they have categorically stated with regard to the overt acts of each of the accused persons and even during the course of cross-examination it has not been disputed that the death of the deceased Nagaraja Gouda is a homicidal death and in the said clash PWs.1, 2, 3 have suffered with injuries. Under such circumstances, non-examination of the Chemical Examiner will not be fatal to the case of the prosecution.
54. It is even well settled proposition of law that non- recovery of the weapon does not detract from the case of the prosecution where clinching and a direct evidence is available and the one produced is cogent and acceptable. This proposition of law has been laid down in the case of State of Rajasthan Vs. Arjun Singh and others, cited supra. In that light also, the contention of the learned Senior Counsel is not acceptable and the benefit of doubt cannot be given to the accused. 134 - - 55. The next contention of the learned Senior Counsel is that the prosecution has not conducted test identification parade. But it is well settled proposition of law that the identification of the accused persons under Section 9 of Indian Evidence Act comes into picture only when the identification of the accused persons is doubtful or when the accused persons are strangers to the alleged incident. In the instant case, admittedly, the accused persons and the injured witnesses are from the same village and various disputes were pending between them. The alleged incident has taken place when there was light in the house and in a compact place. Under such circumstances, there will not be any difficulty in identifying the accused persons though they may be in group. Even the witnesses who have been examined before the Court have identified the accused persons. Under such circumstances, conducting of the test identification parade is not required and it will not be fatal to the case of prosecution. 135 - - 56. One more contention of the learned Senior Counsel is that recoveries which have been made in Crime No.107/2007 have been got marked in the present case and as such the same is not acceptable. But as could be seen from the records, the murder of Ramanagouda, Sannamallanagouda and Nagaraja Gouda has taken place in a single transaction and even the same accused persons by holding the weapons after assaulting Ramanagouda and Sannamallanagouda went to the house of Nagaraja Gouda and with the same weapons they have assaulted and caused his murder. Under such circumstances, the recovery of the weapons will be one and the same which have been used by the accused persons. In that light, the recovery made at the instance of the accused persons in Crime No.107/2007 and the weapons recovered in the present case are also one and the same. In that light, there is no illegality or irregularity in conducting the trial. Be that as it may, even during the course of trial and while marking, it has not been objected, then now the same 136 - - cannot be contended at this juncture. It is not the case of the accused persons that those are not the weapons which have been used for commission of the offence and one which have been recovered are planted. Taking into consideration the aforesaid aspect, we are of the considered opinion that it will not go to the root of the prosecution so as to give the benefit of doubt to the accused.
57. It is the submission of the learned Senior Counsel that some of the accused persons who are there in SC.No.55/2008 are also there in the present case, i.e., SC.No.56/2008. If a person has also been undergoing a sentence of imprisonment, on subsequent conviction to imprisonment or imprisonment for life, as per Section 427(2) of Cr.P.C., the subsequent sentence shall run concurrently with such previous sentence. The trial Court without looking into the said provision of law, has not stated as to how the sentence should run, i.e., whether it should run concurrently or consecutively. We are 137 - - conscious of the fact that the Court is having wider discretion to award suitable sentence for several offences. If the offences have taken place in a single transaction, the sentence shall run concurrently and not consecutively. If the Court wants to award sentence consecutively, it has to assign special reasons.
58. As could be seen from the records, though two FIRs have been registered and three murders have been taken place, the factual matrix indicates that they are all in single transaction. If the Court wants to impose consecutive sentence for the single transaction of the offences, it has to mention the special reasons and circumstances. The question as to how the sentences are to be awarded and whether the Court can pass an order of sentence which should run consecutively came up before the Constitutional Bench of the Hon’ble Apex Court in the case of Muthuramalingam & Others Vs. State, Rep.by Inspector of Police, reported in AIR2016SC3340 wherein the reference has been made to decide the 138 - - question as to “whether consecutive life sentence can be awarded on a convict on being found guilty of a series of murders for which he has been tried in a single trial?.” While answering the said question the Hon’ble Apex Court has held that the sentence cannot be directed to run consecutively. At paragraphs-17, 20, 21 and 31, it has been observed as under:- “17. Reference may also be made to the decisions of this Court in Subash Chander v. Krishan Lal [Subash Chander v. Krishan Lal, (2001) 4 SCC458:
2001. SCC (Cri) 735]. , Shri Bhagwan v. State of Rajasthan [Shri Bhagwan v. State of Rajasthan, (2001) 6 SCC296:
2001. SCC (Cri) 1095]. and Swamy Shraddananda (2) v. State of Karnataka [Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC767: (2009) 3 SCC (Cri) 113]. , which too reiterate the legal position settled by the earlier mentioned decisions of this Court. A recent Constitution Bench decision of this Court in Union of India v. Sriharan [Union of India v.Sriharan, (2016) 7 SCC1 , also had another occasion to review the case law on the subject. Relying upon the decisions of this Court in Sambha 139 - - Ji Krishan Ji [Sambha Ji Krishan Ji v. State of Maharashtra, (1974) 1 SCC196:
1976. SCC (Cri) 102]. , Ratan Singh [State of M.P. v.Ratan Singh, (1976) 3 SCC470:
1976. SCC (Cri) 428]. , Maru Ram [Maru Ram v. Union of India, (1981) 1 SCC107:
1981. SCC (Cri) 112]. and Ranjit Singh [Ranjit Singh v. UT of Chandigarh, (1984) 1 SCC31:
1984. SCC (Cri) 27]. cases this Court observed: “It is quite apparent that this Court by stating as above has affirmed the legal position that the life imprisonment only means the entirety of the life unless it is curtailed by remissions validly granted under the Code of Criminal Procedure by the appropriate Government or under Articles 72 and 161 of the Constitution by the Executive Head viz. the President or the Governor of the State, respectively.” “20. Relying upon Godse [Gopal Vinayak Godse v. State of Maharashtra, (1961) 3 SCR440: AIR1961SC600: (1961) 1 Cri LJ736 and Maru Ram [Maru Ram v. Union of India, (1981) 1 SCC107:
1981. SCC (Cri) 112]. cases, this Court held in Ranjit Singh case [Ranjit Singh v. UT of Chandigarh, (1991) 4 SCC304:
1991. SCC (Cri) 965]. that imprisonment for life is a sentence for 140 - - remainder of the life of the offender. There was, therefore, no question of a subsequent sentence of imprisonment for life running consecutively as per the general rule contained in sub-section (1) of Section 427. This Court observed: (SCC pp. 310-11, para
8) “8. … As rightly contended by Shri Garg, and not disputed by Shri Lalit, the earlier sentence of imprisonment for life being understood to mean as a sentence to serve the remainder of life in prison unless commuted or remitted by the appropriate authority and a person having only one life span, the sentence on a subsequent conviction of imprisonment for a term or imprisonment for life can only be superimposed to the earlier life sentence and certainly not added to it since extending the life span of the offender or for that matter anyone is beyond human might. It is this obvious situation which is stated in sub-section (2) of Section 427 since the general rule enunciated in sub-section (1) thereof is that without the court's direction the subsequent sentence will not run concurrently but consecutively. The only situation in which no direction of the court is needed to make the subsequent sentence run concurrently with the previous sentence is provided for in sub-section (2) 141 - - which has been enacted to avoid any possible controversy based on sub-section (1) if there be no express direction of the court to that effect. Sub- section (2) is in the nature of an exception to the general rule enacted in sub-section (1) of Section 427 that a sentence on subsequent conviction commences on expiry of the first sentence unless the court directs it to run concurrently. The meaning and purpose of sub-sections (1) and (2) of Section 427 and the object of enacting sub-section (2) is, therefore, clear.” “21. Having said that, this Court in Ranjit Singh case [Ranjit Singh v. UT of Chandigarh, (1991) 4 SCC304:
1991. SCC (Cri) 965]. declared that once the subsequent imprisonment for life awarded to the prisoner is superimposed over the earlier life sentence, the grant of any remission or commutation qua the earlier sentence of life imprisonment will not ipso facto benefit the prisoner qua the subsequent sentence of life imprisonment. Such subsequent sentence would continue and shall remain unaffected by the remission or commutation of the earlier sentence. This Court said: (SCC p. 311, para
9) 142 - - “9. … In other words, the operation of the superimposed subsequent sentence of life imprisonment shall not be wiped out merely because in respect of the corresponding earlier sentence of life imprisonment any remission or commutation has been granted by the appropriate authority. The consequence is that the petitioner would not get any practical benefit of any remission or commutation in respect of his earlier sentence because of the superimposed subsequent life sentence unless the same corresponding benefit in respect of the subsequent sentence is also granted to the petitioner. It is in this manner that the direction is given for the two sentences of life imprisonment not to run concurrently.” “31. The above view runs contrary to the ratio of this Court's decision in Cherian case [O.M. Cherian v. State of Kerala, (2015) 2 SCC501: (2015) 2 SCC (Cri) 123]. and Duryodhan Rout case [Duryodhan Rout v. State of Orissa, (2015) 2 SCC783: (2015) 2 SCC (Cri) 306]. . That apart the view taken in Kamalanantha case [Kamalanantha v. State of T.N., (2005) 5 SCC194:
2005. SCC (Cri) 1121]. has not noticed the basic premise that a life sentence once awarded would 143 - - imply that a prisoner shall spend the remainder of his life in prison. Once that happens there is no question of his undergoing another life sentence. To the extent the decision in Kamalanantha case [Kamalanantha v. State of T.N., (2005) 5 SCC194:
2005. SCC (Cri) 1121]. takes the view that the Court can for each offence award suitable punishment which may include multiple sentences of imprisonment for life for multiple offences punishable with death, there is and can be no quarrel with the stated proposition. The Court can and indeed ought to exercise its powers of awarding the sentence sanctioned by law which may include a life sentence. But if the decision in Kamalanantha [Kamalanantha v. State of T.N., (2005) 5 SCC194:
2005. SCC (Cri) 1121]. purports to hold that sentence of imprisonment for life can also be directed to run consecutively, the same does not appear to be sound for the reasons we have already indicated earlier. We need to remember that award of multiple sentences of imprisonment for life so that such sentences are superimposed over one another is entirely different from directing such sentence to run consecutively.” 144 - - 59. The trial Court without looking into the said provision of law, has passed the impugned order. It is well settled proposition of law that if the judgment of the trial Court is silent with regard to the serving of sentence, then the accused have to suffer the sentence consecutively. It is also well settled proposition of law that even the appellate Court can also modify the sentence and specifically direct to run concurrently.
60. Even the trial Court has not looked into the provisions of Section 428 of Cr.P.C. Whatever the period which has been already served by the accused persons, a set off has to be given. In that light, the accused persons who have been convicted are entitled to set off under Section 428 of Cr.P.C.
61. Keeping in view the ratio laid down by the Constitutional Bench, we are of the considered opinion that accused No.2 (accused No.21 in SC.No.55/2008) accused No.4 (accused No.25 in SC.No.55/2008), accused 145 - - No.8 (accused No.1 in SC.No.55/2008), accused No.9 (accused No.2 in SC.No.55/2008), accused No.10 (accused No.3 in SC.No.55/2008), accused No.11(accused No.4 in SC.No.55/2008), accused No.12 (accused No.5 in SC.No.55/2008), accused No.14 (accused No.7 in SC.No.55/2008), accused No.15 (accused No.8 in SC.No.55/2008), accused No.16 (accused No.9 in SC.No.55/2008), accused No.17 (accused No.10 in SC.No.55/2008), accused No.18 (accused No.11 in SC.No.55/2008), accused No.19 (accused No.12 in SC.No.55/2008), accused No.20 (accused No.13 in SC.No.55/2008), accused No.21 (accused No.14 in SC.No.55/2008), accused No.23 (accused No.16 in SC.No.55/2008), accused No.24 (accused No.17 in SC.No.55/2008), accused No.26 (accused No.19 in SC.No.55/2008), who have been convicted in SC.No.55/2008 are liable to be convicted and by exercising the power under Section 427(2) of Cr.P.C., the sentence 146 - - imposed on them in SC.No.56/2008 shall run concurrently as against the said accused persons.
62. Though accused Nos.1, 5, 6, 7, 22, 25, who are accused in SC.No.55/2008, and have been convicted in the said case, they have been acquitted in the SC.No.56/2008, i.e., in these batch of appeals, and as such the benefit under Section 427(2) of Cr.P.C. cannot be extended to them. The accused persons, who have been convicted by confirming the judgment and order of the trial Court are entitled to set off under Section 428 of Cr.P.C. for the period which they have already undergone as under trial prisoners. At this juncture, we want to place it on record the valuable assistance extended by Sri C.V. Nagesh, Senior Counsel for the appellants and Sri L.S. Sullad, learned Special Public Prosecutor for the State, for disposal of these appeals. In view of the above, we pass the following order:- 147 - -
ORDERCriminal Appeal No.100346/2016 filed by accused No.8; Criminal Appeal No.100024/2017 filed by accused No.17 are allowed. The judgment of conviction and order of sentence passed by the trial Court is set aside and they have been acquitted of all the charges levelled against them. Criminal Appeal No.100283/2016 is allowed in part. Accused Nos. 9, 12, 15, 18 to 23 and 25 have been acquitted of all the charges levelled against them and they have been acquitted of the charges levelled against them. Insofar as appeal filed by accused Nos.1, 4, 7, 10, 11, 14, 16, 24 and 26 are dismissed by confirming the judgment of conviction and order of sentence passed by the trial Court. Criminal Appeal No.100194/2018 filed by accused No.2 is also dismissed. So also Criminal Appeal No.100127/2017 filed by the State is dismissed as devoid of merits. 148 - - All the sentences shall run concurrently in respect of the accused who have been convicted. Registry is directed to direct the concerned jail authorities to release accused No.8, 9, 12, 15, 17, 18 to 23 and 25 forthwith, if they are not required in any other case. In view of disposal of the appeals, all pending IAs stand disposed of. SD JUDGE SD JUDGE *AP/-