K.A. KOTRAPPA REDDY AND ANR.versusRAYARA MANJUNATHA REDDY@N.R. MANJUNATHA & ORS.

                        [2015] 12 S.C.R. 1042


A               K.A. KOTRAPPA REDDY AND ANR.
                                  V.

     RAYARAMANJUNATHAREDDY@N.R. MANJUNATHA&
                      ORS.
B              (Criminal Appeal Nos.774-776of2010)
                        OCTOBER 15, 2015
     [PINAKI CHANDRA GHOSE AND R.K. AGRAWAL, JJ.)
         Penal Code, 1860 - ss.143, 147, 148, 504, 114, 323,
c 324 and 302 - Quarrel between the President of Village
     Panchayat and accused over some road repair work -
     Accused formed unlawful assembly, abused and beat the
     deceased with dangerous weapons resulting in his death -
0
    Accused    charged for offences punishable u/ss. 143, 147, 148,
     504, 114, 32~, 324, 302 - Conviction of accused no.1-10,
    however, acquittal of accused no.11 - In appeal, the High
     Court acquitted accused no. 1-10 as also upheld acquittal of
    accused no. 11 - Interference with- Held: No compelling and
E substantial reasons to in/erfere with the judgment passed by
    the High Court - Prosecution failed to impute motive upon
    the accused- Evidence of the eye-witnesses was doubtful-
     They were interested and partisan witnesses- The only non-
    partisan and chance witness, turned hostile - Prosecution
F failed to examine any independent witness even though the
    incident occurred in broad day light with number of
    neighbours around - Presence of the injured witnesses is
    also disputed- There was delay in lodging FIR as also delay
    in sending the seized articles to FSL and in writing the post-
G mortem report - There was non-explanation of material
  · irregularities by the prosecution - Thus, prosecution failed
    to prove its case beyond reasonable doubt against accused
    nos. 1-10 - High Court was justified in doubting the veracity
H of the ~rosecution case and the order of acquittal does not
                                1042
   K.A. KOTRAPPAREDDYv. RAYARAMANJUNATHA                         1043
            REDDY@ N.R. MANJUNATHA

suffer from the vice of perversity-As against accused Nos. 11    A
and 12, alibi is sufficiently proved.

     Brahm Swaroop & Anr. v. State of Uttar Pradesh
     2010 (15) SCR 1 : (2011) 6 SCC 288; D.K. Basu
     v. State of WB. 1996 (10) Suppl. SCR 284:                    B
     (1997) 1 sec 416; Mritunjoy BiSW?S v. Pranab
     @Kuti Biswas &Anr. 2013 (7) SCR 1105: (2013)
     12 SCC 796; State of Rajasthan v. Raja Ram
     2003 (2) Suppl. SCR 445: (2003) a sec 1ao;
     Upendra Pradhan v. State of Orissa 2015 SCR                  c
     214: (2015) 5 SCALE 634 - referred to.

                   Case Law Reference

   2010 (15) SCR 1                referred to.   Para 8           D

   1996 (10) Suppl. SCR 284       referred to.    Para 11

   2013 (7) SCR 1105              referred to.    Para 11

   2003 (2) Suppl. SCR 445        referred to.    Para 13         E

   2015 SCR 214                   referred to.    Para 13

    CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
Nos. 774-775 of2010
                                                                  F
    From the Judgment and Order dated 19.11.2008 of the
High Court of Karnata~a at Bangalore in Criminal Appeals Nos.
829, 790 and 1408 of 2007.

    Sushil Kr. Jain, Sr. Adv., B. R. Rudresh, Ashwin V.           G
Kotemath, Puneet Jain, Abhinav Gupta, K. V. Bharathi
Upadhyaya, Advs., for the Appellants.

     B. H. Marlapalle, Sr Adv., ShanthkumarV. Mahale,Amith
J., Aditya Kalal, Aditya Shul<la, Ajeet Singh, Rajesh W.2hale,    H




                                                                      •
1044         SUPREME COURT REPORTS                [2015] 12 S.C.R.


 A Anitha Shenoy,Advs., for the Respondents.

       The Judgment of the Court was delivered by

            PINAKI CHANDRA GHOSE, J. 1. These appeals are
 11
       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
 c     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.11and12, which was dismissed by the High
       Court.

 0       2. The brief facts necessary to dispose of these appeals
    are that on 13.09.2005 at about 10:30A.M., oneAjjanna Reddy
    (dece~ased), 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
 E lshwar 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
 I· accu:3ed 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.
 u PW1. PW2 and PW5 came to rescue the deceased but they
    were also thrashed. Furthe·r, the accused left the scene, the
    deceased was taken to Davangere Hospital where he was
    declared brought dead at 2:30 PM. PW1 went to lodge the
    FIR at about 6:30 P.M. at Malebennur Police Station against
 H 11 accused persons and one Siddappa (not accused herein) .




 •
K.A. KO TRAP PA REDDYv. RAYARA MANJUNATHA REDDY@ 1045
      N.R. MANJUNATHA [PINAKI CHANDRAGHOSE, J.]

    3. After investigation, charge-sheet was filed against 12 A
accused persons (name of 121h 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 8
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     C
accused Nos. 1to9 forthe 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
                                                                     0
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              E
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
conviction by filing Criminal Appeal No.829of2007, accused
No.10 separately challenged his conviction order by filing           F
Criminal Appeal No.790 of 2qo7 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     G
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         H
1046          SUPREME COURT REPORTS                    [2015] 12 S.C.R.


 A     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.

 B          5. The lnfcrmant PW1 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
 C     various hospitals for about 61 Kms. Regarding the testimony
       of the eye witnesses, the learned senior counsel for the
       appellant contended that except PW1 (Kotrappa Reddy}, no
       other witnesses are related to the complainant or the
       deceased. It was also contended that PW1 was independent
 D
       witness as he was also a relative of the accused party. The
       testimony of PW1 and PW5 was more trustworthy as they were
       injured witnesses and PW10 and PW11 were chance
       witnesses who were working in an Anganwadi within close
 E     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 PW5
 F     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
 G     of the accused at some other place.

         6. Mr. 8. H. Marlapalle, learned senior counsel appearing
   for the respondents accused has made various submissions
   countering the arguments put forward by the appellant. The
 H FIR was contended to be delayed by more than 6 hours and
 K.A. KOTRAP PA REDDYv. RAYARA MANJUNATHA REDDY@ 1047
       N.R. MANJUNATHA [PINAKI CHANDRAGHOSE, J.]

·owing to the relationship between the parties, the said time       A
 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   8
 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
 ofPW1 orPW2werealsonotseized. Anotherfactwhichwas                  c
 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       D
 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            E
 regional branch of Forensic 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,        F
 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 G
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 H
1048         SUPREME CO.URT REPORTS                  [2015] 12 S.C.R.


 A 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
 8 which would have reduced the area of the house of the accused.
   Upon perusal ef the records, PW1 himself admitted that the
   accused have not contested any election against the
   deceased. As against the immediate cause, PW18 (labourer)
 c 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
 o 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. PW1, PW2, PW5, PW10
       and PW11 are the five eye-witnesses, outofwhich PW1 and
 E     PW5 are injured witnesse~. 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
 F     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
 G     witness which casts a doubt on its genuineness. The High
       Court has scrutinized at length the statements of individual eye-
       witnesses and has rightly discredited their testimonies. PW1
       and PW2 are closely related with the deceased and are thus
       interested parties. It has been proved that there has been a
 H     series of litigation, both civil and criminal, on each side. The
K.A. KOTRAPPA REDDYv. RAYARA MANJUNATHA REDDY@ 1049·
      N.R. MANJUNATHA [PINAKI CHANDRA GHOSE, J.]

above added to the fact that neither blood-stained clothes of         A
PW1, PW2 or PWS were seized nor their conduct seemed
natural, further weakens the prosecution case. The injuries on
PW1 and PWS are minor and upon medical examination, were
opined to be self-inflicted. Thus, the High Court rightly pointed
                                                                      8
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        c
theAnganwadi was 9:30A.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 e)Cplanation was given as to why they         o
 left early just to collect honorarium, or how coulc ~hey both have
left the infants without 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         E
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           F
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            G
Uttar Pradesh, 1 wherein this Court held:

       "26. Merely because the witnesses were closely related
      to the deceased persons, their testimonies cannot be
       discarded. Their relationship to one of the parties is not
                                                                  H
1
  (2011) 6 sec 288
1050       SUPREME COURT REPORTS                   [2015] 12 S.C.R.


 A        a factor that affects the credibility of a witne,ss; more so,
          a relation would not conceal the actual culprit and make
          allegations against an innocent person. A party has to
          lay down a factual foundation and prove by leading
          impeccable evidence in respect of its false implication.
 B        1-fowever, in such cases, the court has to adopt a careful
          approach and analyse the evidence to find out whether
          it is cogent and credible evidence... .. .

          28. Where a witness to the occurrence has himself been
 c        injured in the incident, the testimony of such a witness
          is generally considered to be very reliable, as he is a
          witness that comes with a built-in guarantee of his
          presence at the scene of the crime and is unlikely to
          spare his actual assailant(s) in order to falsely implicate
 D
          someone. Convincing evidence is required to discredit
          an injured witness".

       9. However, in the present case it is proved that there has
   been a series of litigation, both criminal and civil, on both sides.
 E Moreover, the presence of the injured witnesses is disputed
   as neither the injuries sustained by both of them are proved,
   nor their clothes were seized which are alleged to have
   contained the blood stains of the deceased. Thus, the ratio of
 F the above case fails to support the case of the present
   appellant.

         10. The third issue is the delay in lodging the FIR. Not only
   the FIR was delayed but there was delay in sending the seized
   articles to FSL and in writing the post-mortem report also.
 0
   Initially a verbal exchange took place at 10:30A.M., which led
   to a major attack at about 12:30 P.M. Consequently the
   deceased was severely injured. The deceased was first taken
   to Harihar where the doctor, without any paperwork, referred
 H him to some big hospital. The deceased was then brought at
   City Central Hospital in Davangere where he was declared as
       K.A. KOTRAP PA REDDYv. RAYARA MANJUNATHA REDDY@ 1051
             N.R. MANJUNATHA [PINAKI CHANDRAGHOSE, J.]

        dead before arrival at about 2:30 P.M. The dead body was A
        then taken for post-mortem at Chigatiri General Hospital in
        Davangere. The FIR was lodged at Malebennur at 6:30 P.M.
-·~     Despite police stations at Davangere and Harihar, which were
        closer, the informant went to lodge the FIR at Malebennur Police ·
        Station, which was around 16 Kms. from the place of incident. B
        The only explanation the informant gave was that they were
        under shock due to the brutal attack, which is not explanatory
        in view of the distance and time taken. Also, looking at the
        previous enmity and earlier litigations between the parties, the c
      . time taken is good enough to cast a doubt upon the entire
        event. Further, it has been revealed from the depositions that
        a crowd had gathered in front of the Chigatiri General Hospital
        on receiving the news that the Chairman of the Village
        Panchayat was dead. To cater to the law and order situation, D
        many police personnel headed by the Deputy Superintendent
        of Police were present at the hospital. However, non-action on
        the news of a homicidal death on behalf of the police officer
        casts doubt on the role of the informant in connivance with the ·
        police officer.                                                    E

           11. One more aspect for our consideration is the non-
      explanation of material irregularities by the prosecution. Firstly,
      the prosecution have no explanation to the fact that when at
      Chigatiri General Hospital, many police officers were deputed F
      as the information of death of Chairman of the Panchayat had
      spread, why none of the police officers approached any witness
      or the relative to enquire about the incident. The informant took
      the deceased to private Gity Central Hospital even though a
      Government Chigatiri General Hospital with 1000 beds was G
      situated in the vicinity. Further, the prosecution did not explain
      the delay in making the FIR and as to why it was lodged in
      Malebennur Police Station instead of Harihar or Davangere.
      The search and seizure was doubtful, as the blood-stained
      clothes bf the witnesses were not seized. The deceased was H
1052           SUPREME COURT REPORTS                    (2015] 12 S.C.R.


 A   allegedly resting in the lap of his wife Geeta, however, her
     blood-stained clothes were also not seized. No efforts were
     made even to trace the shirt of the deceased. It was only after
     four days on 17.09.2005, that the blood-stained shirt was
   · seized from the Chigatiri General Hospital from PW? by the
 8 Investigating Officer. The police officer also did not follow the
     appropriate procedure under investigation. There is no arrest
     Panchanama drawn by PW23 and duly signed by any
     witnesses while affecting the alleged arrest. In addition, there
 c is nothing on record, placed by the prosecution, to suggest
     that the mandatory provisions of the Code of Criminal ·
     Procedure, 1973.as well as the guidelines laid by this Court in
     D.K. Basu v. State of W.B. 2, while effecting the arrests were
     followed. The Investigating Officer sent the seized articles after
 o one month of the alleged recovery, and that too the articles
     were sent to FSL, Bengaluru, when in fact a regional branch of
     FSL exists in Davangere. The prosecution also failed to ex13lain
     as to why the post-mortem report was written on 17 .09.2005
     when the body was sent on 13.09.2005 and the examination
 E was carried on 14.09.2005. Learned counsel for the appellant,
     on this point cited the judgment of this Court in Mritunjoy
     Biswas v. Pranab @Kuti Biswas & Anr. 3, wherein it was
      held:

 F             "28 . ... It is well settled in law that the discrepancies are
               not to be given undue emphasis and the evidence is to
               be considered from the point of view of trustworthiness.
               7he test is whether the same inspires confidence in the
               mind of the court. If the evidence is incredible and
 G             cannot be accepted by the test of prudence, then it may
               create a dent in the prosecution version. If an omission
               or discrepancy goes to the root of the matter and ushers
               in incongruities, the defence can take advantage of such
       --
 H     2
           (1997) 1   sec 416
       ' r2013J 12     sec 796
K.A. KOTRAPPAREDDYv. RAYARAMANJUNATHAREDDY@ 1053
      N.R. MANJUNATHA [PINAKI CHANDRA GHOSE, J.]

     inconsistencies. It needs no special emphasis to state A
     that every omission cannot take place of a material
     omission and, therefore, minor contradictions,
     inconsistencies or insignificant embellishments do not
     affect the core of the prosecution case and should not
     be taken to be a ground to reject the prosecution B
     evidence. The omission should create a serious doubt
     about the truthfulness or creditworthiness of a witness.
     It is only the serious contradi~tions and omissions
     which materially affect the case of the prosecution but c
     not every contradiction or omission."

     This Court has already held that the question as to material
omissions will depend upon the facts and c.ircumstances of
each case, and upon the discrepancies noted above, these
are all material omissions in our view which are fatal to the D
present case. These omissions were to be answered by the
prosecution and non-explanation creates a serious doubt about
the truthfulness and credit worthiness of the investigation, and
it seems to be tainted.                     ·                     E

      12. We have given our careful and anxious consideration
to the rival contentions put forward by either sides and also
scanned through the entire mate.rials available on record
                      •
including the impugned judgment. We are of the opinion that F
the prosecution has failed to prove its cas~ beyond reasonable
doubt against accused Nos.1 to 10 and the High Court was
justified in doubting the veracity of the prosecution case and
consequently recording the verdict of acquittal which does not
suffer from the vice of perversity. As against accused Nos.11 o
and 12, their alibi is sufficiently proved and the prosecution
has not been able to rebut the voluminous documents and the
testimonies of independent witnesses. The Trial Court and the
 High Court have arrived at a concurrent and correct finding
that accused Nos.11 and 12 were not present in the village at H
1054         SUPREME COURT REPORTS                  [2015] 12 S.C.R.


 A the relevant point of time, then the parrot-like eye witness
   account given by PWs.1, 2, 5, 10 and 11 becomes suspicious
   as to its truthfulness.

       13. The learned senior counsel appearing for the
 B respondents accused cited the judgment of State of
   Rajasthan v. Raja Ram, 4 recently quoted in Upendra
   Pradhan v. State of Orissa, 5 wherein this Court held:

             "Generally the order of acquittal shall not be interfered
 c           with because the presumption of innocence of the
             accused is further strengthened by acquittal. The
             golden thread which runs through the web of
             administration ofjustice in criminal cases is that if two
             views are possible on the evidence adduced in the case,
 D          ·one pointing to the guilt of the accused and the other to
             his innocence, the view which is favourable to the
             accused should be adopted. The paramount
             consideration of the Court is to ensure that miscarriage
             of justice is prevented. A miscarriage of justice which
 E
             may arise from acquittal of the guilty is no less than
             from the conviction of an innocent. In a case where
             admissible evidence is ignored, a duty is cast upon the
             appellate court to reappreciate the evidence in a case
             where the accused has been acquitted, or the purpose
 F
             of ascertaining as to whether any of the accused
             committed any offence or not. The principle to be
             followed by the appellate court considering the appeal
             against the judgment of acquittal is to interfere only when
 G           there are compelling and substantial reasons for doing
             so. If the impugned judgment is clearly unreasonable,
             it is a compelling reason for interference ... "


 H     • (2003) s sec 1so
       5 (2015) 5 SCALE 634
    K.A. KOTRAPPA REDDYv. RAYARAMANJUNATHA REDDY@ 1055
          N.R. MANJUNATHA [PINAKI CHANDRA GHOSE, J.]

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

    Nidhi Jain                                    Appeals dismissed.   B