K.A. Kotrappa Reddy v. Rayara Manjunatha Reddy

1. These appeals are directed against the judgment and order dated 19th November, 2008 passed by the High Court of Karnataka at Bengalore in Criminal Appeal Nos.790, 829 and 1408 of 2007. Criminal Appeal Nos.790 of 2007 and 829 of 2007 were filed by accused Nos.[1] to 10 against their conviction and the same were allowed by the High Court. Criminal Appeal No.1408 of 2007 was filed by the State of Karnataka against the acquittal of accused Nos.11 and 12, which was dismissed by the High Court. Page 2

2. The brief facts necessary to dispose of these appeals are that on 13.09.2005 at about 10:30 A.M., one Ajjanna Reddy (deceased), who was the President of Nandigavi Village Panchayat in Harihara Taluk, District Davangere, Karnataka, was monitoring execution of the road repair work in front of Ishwar Temple situated near the house of accused Nos.[1] to 4. Accused No.6 objected to the same as the said repair would reduce the area of the front yard of his house. The accused persons picked up quarrel with Ajjanna Reddy and asked him to stop the work which he refused to do so. It is alleged that the accused persons, who were 12 in number, formed an unlawful assembly carrying dangerous weapons, abused and beat the deceased at about 12:30 P.M. and soon, about 50 odd people gathered at the place of occurrence and there was a chaos. PW[1], PW[2] and PW[5] came to rescue the deceased but they were also thrashed. Further, the accused left the scene, the deceased was taken to Davangere Hospital where he was declared brought dead at 2:30 PM. PW[1] went to lodge the FIR at about 6:30 P.M. at Malebennur Police Station against 11 accused persons and one Siddappa (not accused herein). Page 3

3. After investigation, charge-sheet was filed against 12 accused persons (name of 12th accused Siddappa was substituted with Nadigara Tipeswamy). After considering the material on record and hearing the counsel for the accused, they were charged for offences punishable under Sections 143, 147, 148, 504, 114, 323, 324 and 302 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”). The charges were read over and explained to them. All the accused persons pleaded not guilty and claimed for trial.

4. The Trial Court by its judgment and order convicted the accused Nos. 1 to 9 for the offences punishable under Section 143, 148 and 302 read with 149 IPC. Accused No. 10 was found to be guilty of the offence punishable under Section 114 read with 302 IPC. Accused Nos.2, 4 and 9 were also convicted for the offence punishable under Section 324 IPC. The convictions were based on the evidences of the eye witnesses, which included two injured witnesses, and the recovery of weapons used further corroborated by the extra-judicial confession made to PW14 (B.M. Halaswamy) and the motive being established. However, the Trial Court gave benefit of doubt to accused Nos.11 and 12 and acquitted them of all the charges. Accused Nos.[1] to 9 challenged their order of Page 4 conviction by filing Criminal Appeal No.829 of 2007, accused No.10 separately challenged his conviction order by filing Criminal Appeal No.790 of 2007 before the High Court and the State also filed Criminal Appeal No.1408 of 2007 against the acquittal of accused Nos.11 and 12. The High Court by the impugned judgment and order allowed the first two appeals and dismissed the third appeal filed by the State, on the ground that the prosecution failed to bring home the guilt of the accused beyond reasonable doubt and as such, they were entitled for benefit of doubt. The acquittal was based on ground that there was delay in filing the FIR and the eye witnesses who were relied upon by the Trial Court were interested and partisan witnesses. The motive was also not clearly established since there was no proof of any repair work in front of the house of the accused and it was proved on record that the accused never contested any election against the deceased.

5. The Informant PW[1] has filed the present appeals before this Court. Mr. Sushil Kumar Jain, learned senior counsel appearing for the appellant has made various submissions on the basis of the Trial Court judgment. It was argued that there was no undue delay, as the informant had to travel to various hospitals for about Page 5

61 Kms. Regarding the testimony of the eye witnesses, the learned senior counsel for the appellant contended that except PW[1] (Kotrappa Reddy), no other witnesses are related to the complainant or the deceased. It was also contended that PW[1] was independent witness as he was also a relative of the accused party. The testimony of PW[1] and PW[5] was more trustworthy as they were injured witnesses and PW10 and PW11 were chance witnesses who were working in an Anganwadi within close proximity to the place of incidence. Learned senior counsel also submitted that there was no dispute regarding the fact that the deceased died a homicidal death on account of serious injuries inflicted upon him which caused profound bleeding. With regard to accused No.12, it was argued that PW[5] specifically stated his role in the alleged assault in the statement recorded by the police immediately after the FIR was lodged. Against the acquittal of accused No.11, it was argued that the certificate was not in the name of accused No.11 and even otherwise, merely a certificate would not prove the attendance of the accused at some other place.

6. Mr. B. H. Marlapalle, learned senior counsel appearing for the respondents accused has made various submissions countering Page 6 the arguments put forward by the appellant. The FIR was contended to be delayed by more than 6 hours and owing to the relationship between the parties, the said time was used to built up a story wherein as many as 9 members of accused family were named. The learned senior counsel pointed out various lapses in the prosecution story and contended that the prosecution failed to materially explain few facts. For instance, there was no forensic report brought before the Trial Court of PW15 (Geeta-wife of the deceased) or any other person who accompanied the deceased; bloodstains from the jeep car were also not seized; blood-stained clothes of PW[1] or PW[2] were also not seized. Another fact which was not explained by the prosecution was as to why no action or investigation was initiaited when the police officers came to know about the death of a person in the City Central Hospital itself at about 2:30 P.M. There is also no explanation as to why the deceased was not taken to the Chigatiri General Hospital which is a Government hospital with 1000 beds. The deceased was instead taken to a private City Central Hospital. Another fact which still remains unanswered was as to why the nearest police station was not informed and as to why the FIR was lodged in Malebennur Police Station. Though there was a regional branch of Forensic Page 7 Science Laboratory at Davangere, yet the seized articles were sent to Forensic Science Laboratory, Bengaluru, after a delay of about one month. The learned senior counsel for the respondent further argued that there were numerous corrections made in the autopsy report, as was admitted by PW21 (Doctor Tulsi Nayak), and he did not give any explanation as to the cause of delay in drawing the autopsy report.

7. In our considered opinion, there are three main issues on which contentions have been advanced before this Court and we shall now examine each contention in the light of the arguments made before us. The first is regarding motive. It is a settled law that motive is not a necessary element in deciding culpability but it is an equally important missing link which can be used to corroborate the evidences. In the present case, the motive of the accused was stated to be two-fold. One being the already existing political rivalry between the parties and the immediate cause being the heated objections raised by the accused against the deceased for carrying out repair work which would have reduced the area of the house of the accused. Upon perusal of the records, PW[1] himself admitted that the accused have not contested any election Page 8 against the deceased. As against the immediate cause, PW18 (labourer) stated that the repair was going on at the back of the temple and not in front of the accused’s house. The investigating officer did not seize any material nor did he produce any evidence or Panchayat record or contract to prove that any such repair work was going on in front of the house of the accused. Thus, the prosecution squarely failed to impute motive upon the accused.

8. The second issue, which is of paramount consideration, is the testimony of the eye-witnesses. PW[1], PW[2], PW[5], PW10 and PW11 are the five eye-witnesses, out of which PW[1] and PW[5] are injured witnesses. All the five witnesses are either related or the party members of the deceased, hence they are partisan or interested witnesses. Merely because they are interested witnesses their evidence cannot be discredited. However, in our view, it appears that the evidences of each of these eye-witnesses are doubtful and require careful scrutiny. It is also pertinent to note that the incident in the present case occurred in broad day light in the afternoon and there were a number of neighbours in and around the scene of the incident. But the prosecution has failed to examine any independent witness which casts a doubt on its Page 9 genuineness. The High Court has scrutinized at length the statements of individual eye-witnesses and has rightly discredited their testimonies. PW[1] and PW[2] are closely related with the deceased and are thus interested parties. It has been proved that there has been a series of litigation, both civil and criminal, on each side. The above added to the fact that neither blood-stained clothes of PW[1], PW[2] or PW[5] were seized nor their conduct seemed natural, further weakens the prosecution case. The injuries on PW[1] and PW[5] are minor and upon medical examination, were opined to be self-inflicted. Thus, the High Court rightly pointed out that they could not have been eye-witness to the incident. PW10 and PW11 are the working ladies in an Anganwadi within close proximity of the place of incident. However, as per their narration of the story, their presence at the place of incidence is itself doubtful. They deposed that the timings of the Anganwadi was 9:30 A.M. to 1:30 P.M., and the fact that they left the school early on that day is unnatural, since the school was an Anganwadi which is usually attended by infants. The witnesses further deposed that they went to collect their honorarium. However, no explanation was given as to why they left early just to collect honorarium, or how could they both have left the infants without Page 10 any guidance. Also, no proof of any honorarium being paid to these two witnesses on the date of incidence was ever adduced in the evidence before any Court. Thus, their presence at the time and place of incident is not sufficiently proved. Another witness PW18 was the labourer, who deposed that repair work was going on at the back of the temple and not in front of the house of the accused, as contended by the prosecution. The said witness is the only non-partisan and chance witness. However, he turned hostile and deposed that he did not see any quarrel between the accused party and the deceased, in and around the place of incident. The learned counsel for the appellant relied on the judgment of this Court in Brahm Swaroop & Anr. v. State of Uttar Pradesh,[1] wherein this Court held: