NOUSHAD@ NOUSHAD PASHAAND OTHERSversusSTATE OF KARNATAKA

                   (2014] 14 S.C.R. 499


     NOUSHAD@ NOUSHAD PASHAAND OTHERS                           A
                              v.
                 STATE OF KARNATAKA
             (Criminal Appeal No.119 of 2013)
                   •
                  DECEMBER 03, 2014                             B
    [FAKKIR MOHAMED IBRAHIM KALIFULLA AND
           ABHAY MANOHAR SAPRE, JJ.)
      Penal Code, 1860- ss. 143, 14 7, 148, 448 and 302 rlw/
s. 149 - Prosecution under.,.. Of the appellants-accused (A- C
1, A-2 and A-3) alongwith 40 others- Conviction of 6 accused
including the appellants-accused by trial court while rest of
the accused acquitted - High Court confirmed conviction of
the appellants-accused while acquitting the three accused -
On appeal, held: In view of the conclusion by the trial court in D
respect of the eye-witnesses that they were unreliable and
unbelievable, it would be unsafe to-rely on them to confirm
the conviction of appellants-accused - The High Court
without assigning any reason perfunctorily held that they were
believable, trustworthy and natural witnesses - Since the vel)I
version of the eye-witnesses resulted in acquittal of all the E
accused, for the vel)I same reasoning, conviction of the
appellants-accused also cannot stand- Conviction set aside.
     Allowing the appeal, the Court
      HELD: 1. The High Court has totally omitted to note F
relevant findings of the trial Court as regards the
evidence of PWs-14, 15, 19, 24, 30, 43 and 44 by stating
that there was no reason to disbelieve their evidence
except that it suffered from little variations. The High
Court without assigning any reason perfunctorily held G
that except minor variations those witnesses were eye
witnesses and that their version was believable,
trustworthy, natural which finding was not supported by
any convincing reason. Thus, with reference to the so-
called star witness PW-11 and the other so-called eye- H
                           499
500        SUPREME COURT REPORTS              [2014) 14 S.C.R.

A witnesses with reference to whom the trial Court has
    m·ade it clear that they were all unreliable and
    unbelievable, it will be wholly unsafe to rely on. such
     evidence in order to confirm the conviction imposed on
    A-1 to A-3. [Paras 36 and 37][S18-D-H; 519-A-B]
B           2. Keeping in view the various factors stated by PW-
     1.1 (the star witness) and also as noted in the Exhibit P-
     18, the complaint, the mahazar as well as P-55 sketch
    ·read along with the version of PW-15, the evidence of
    PW-11 could not have been believed insofar as it related
C to the actual occurrence, which admittedly was taking
     place inside his banana shop, the length and breadth of
     it being 11 ft. x 8 ft. which place was admittedly
     surrounded by nearly 30 persons while 15 persons were
     stated to be inside the said shop of small size. It would
D have been next to impossible for PW-11 to have
     witnessed the actual occurrence that was taking place
     inside such a small place which was already occupied
     by 15 persons and surrounded by 30 others outside the
     shop, taking note of the fact that he was located in a
E place away from the shop. PW-11 was also not consistent
  · with reference to the weapo·n stated to have been found
     in the possession of A-2 and A-3. A cumulative
     consideration of his version discloses that PW-11 could
     not have witnessed the occurrence as spoken to by him.
F Therefore, the evidence of PW-11 was full of
     inconsistencies and the trial Court as well as the High
     Court completely ignored s~ch inconsistencies while
     holding the appellants guilty of the offence alleged
     against them. [Paras 32 and. 35][516-C-F; 518-B-D]
G          3. Though the very version spoken to by the said
      witnesses persuaded the trial Court to acquit all other
      accused, except A-1 to A-5 and A-29 and the High Court
      to acquitA-4, A-5 and A-29, for the very same reasoning,
                                  .'·
H
 NOUSHAD@NOUSHAD PASHA v. STATE OF KARNATAKA                  501


the conviction of A-1 to A-3 cannot also stand. A
Consequently, the conviction and the sentence imposed
on the appellants are set aside. [Para 38)(519-C-O]
    CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No(s). 119 of 2013.
     From the Judgment and Order dated 01.03.2012 of the B
High Court of Karnataka at Bangalore in Criminal Appeal No. .
787 of2007.
     Altaf Ahmad, Sr. Adv., E. C. Vidya Sagar, Ms. Bansuri
Swaraj, Ms. Jennifer John, Ms. Kheyali Sarkar,Advs. for the c
Appellants.            ·
    Parikshit Angadi, V. N. Raghupathy, Adv$. for the
Respondents.
    The Judgment of the Court was delivered by
                                                              D
     FAKKIR MOHAMED IBRAHIM KALIFULLA, J.
      1. This appeal, at the instance of accused Nos.1to3 is
directed against the judgment of the Division Bench of the High
Court of Karnataka at Bangalore in Criminal Appeal No. 787
of 2007 dated 01. 03.2012 by which conviction and sentence E
imposed on the Appellants for offences under Sections 143,
147, 148, 448 and 302, Indian Penal Code (IPC) read with
Section 149 of IPC was confirmed.
       2. The case of the prosecution was thatthe accused along
with 40 others formed themselves into an unlawful assembly F
with the common object of committing murder of the
complainant Mahadeva (PW-11) and the deceased Lingaraju
apart from committing other offences. It was alleged that with
the above common object of such assembly, they also hatched
a criminal conspiracy prior to 3 p.m. on 13.02.1999 and all the G
accused went to the shop of the deceased and the
complainant, committed trespass armed with deadly weapons
like swords, choppers, longs, clubs etc., with an intention to
kill them and intentionally committed .the murder of deceased
Lingaraju by assaulting him all over his body with the use of H
502       SUPREME COURT REPORTS                 [2014] 14 S.C.R.


A deadly weapons possessed by them and that whe'n the
  deceased pngaraju in his injured 1conditio'n tried to escape
  and run away towards the police station, he was further
  assaulted by the accused by chasing him down. The deceased
  Lingaraju ultimately fell down with 'multiple severe injuries in
B front of Surya Pra]:>ha Hardware shop. Thereafter, the accused
  alleged to have run away from the scene with the weapons in
  different vehicles in different directions. When. the victim
  Lingaraju was immediately shifted to the Government Hospital,
  he was declared dead on examination by the doctors.
C        3. Exhibit P-18 was the complaint which was lodged at
    3.30 pm, while the occurrence was stated to have happened
    at 3 p.m. on 13.02.1999. Altogether 44 accused were
   proceeded against. In the course of trial, A-8 died. The trial
    Court convicted A-1; A-2, A-3, A-4, A-5 and A-29 and rest of
D ·the accused.were allacquitted: The Criminal Appeal No.787
   of 2007 was preferred by the present Appellants along with A-
   4, A-5 and A-29 't9hile Criminal Appeal No.1775 of 2007 was
    preferred by the State of Karnataka. By the impugned
   judgment, the Division Bench of the High Court, while
E confirming the conviction and sentence imposed on the .
   Appellants, allowed the appeal preferred byA-4,A-5 andA-
    29 and acquitted them of all the charges. As many as 49
    witnesses were examined on the side of the prosecution.
        4. We heard Mr. Altaf.Ahma.d, learned Senior Counsel
F for the Appellants and Mr. ParikshitAngadi, learned counsel
  for the Respondent. Mr. Altaf Ahmad, learned Senior Counsel
  in his submissions stated that of the 49 witnesses, reliance
  was mainly placed upon PWs-11, 14, 15, 19, 24, 30, 42, 43
  and 44 out of whom many turned h.ostile and quite a number of
G them were found to be chance witnesses and unreliable. PW-
  11 was relied upon by the prosecution as star witness who
  was the complainant himself ancl J=xhibit P-18-complaint was
  lodged by him. Apart from PW-11. PWs-19, 30 and 32 were
  also claimed to be eye-witnesses. The learned Senior Counsel
H also submitted that no test identification parade was held.
 NOUSHAD@NOUSHAD PASHA v. STATE OF KARNATAKA                       503
      [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

According to him, though PW-11 was claimed to be an eye- A
witness along· with PWs-19, 30 and 32, there were serious
deficiencies in their evidence and, therefore, they cannot be
accepted to have witnessed the occurrence even going by what
they have deposed before the Court. The learned Senior
Counsel also contended that going by the complaint Exhibit B
P-18, there were serious contradictions as compared to the
oral evidence led before the trial Court and, therefore, the
conviction of the Appellants cannot be sustained. The learned
Senior Counsel contended that whatever reason which
weighed with the Courts below for the acquittal of the other C
accused equally applied to the Appellants and consequently,
they are also entitled for acquittal on the very same reasoning.
      5. The learned Senior Counsel pointed out that what
weighed with the High Court in confirming the conviction
againstA-1 were the evidence of PWs-11, 19, 42 and 44,             D
which were found to be not trustworthy to confirm the conviction
of A-4, A-5 and A-29 and in such circumstances, as the said
evidence was mutatis mutandis applied to A-1 also, the
conviction as againstA-1 could not have been singled out for
confirming the conviction. The learned Senior Counsel pointed      E
out that similarly in respect of A-2, the High Court relied upon
PWs-11, 14, 15, 24, 43 and 44 which again contained very
serious infirmhies in order to acquit the other accused by the
trial Court and A-4, A-5 and A-29 by the High Court and
consequently, the reliance placed upon those witnesses for         F
convicting A-2 was not justified. The learned Senior Counsel
further contended that the High Court relied upon PWs-11, 15,
19, 24, 30, 43 and 44forconfirming the conviction of A-3 and
since the evidence of those witnesses were not sufficient for
confirming the conviction of A-4, A-5 and A-29 and that their      G
said evidence could not be relied .upon for the conviction of
the other accused, the confirmation of the conviction of A-3
alone by the High Court cannot be confirmed. The learned
Senior Counsel in support of his submission took us through
the contents of the complaint Exhibit P-18, the evidence of        H
504         SUPREME COURT REPORTS                [2014] 14 S.C.R.


A     PWs-11, 19, 30, 32, 42, 44 and the sketch Exhibit P-55 to
      point out the serious discrepancies in their version which,
      according to him, could not have been relied upon by any
      stretch of imagination to support the conviction of the
                                         I                        .
      Appellants.                     ·. ,.                    ..
B       6. As against the above submissions, Mr. Parikshit
  Angadi submitted that the evidence of PWs-11, 15, 32 and 44
  who were eye Witnesses to the incident were sufficient enough
  to support the case of prosecution. The learned counsel
  pointed out that PW-15 was truly an eyewitness as he was a.
C hawker who was doing vending business of Bananas by
  stationing his four wheeled pushing Gadi in front of Anjuman
  complex building at Ambedkar Road opposite to which the
  shop of the deceased was located. He also contended that
                                       '
  PW-44, who was also doing fruit business     as a hawker in his
D four wheeled pushing Gadi in front of Dr. Mahadevswami Clinic
  on the very same Ambedkar Road also witnessed the said
  incident and that since they were regularly doing their vending
  business on the said road opposite to the place of occurrence,
  their version was rightly relied upon by the trial Court.. The
E learned counsel further contended that PW-11 was able to
  identify the Appellants by their names and his complaint Exhibit
  P-18 was based on what he actually witnessed at the place of
  occurrence and, therefore, the complicity of the Appellants in
  the crime was established beyond reasonable doubt. The
F learned counsel for the Respondent State, therefore,
  contended that the conviction and sentence imposed on the
  Appellants by the trial Court and confirmed by the High Court
  does not call for any interference. ;
       7. Having heard learned counsel for the Appellants and
G the Respondent, we wish to note the relevant provisions under
  which the conviction was ordered by the trial Court in its
  judgment dated 21.04.2007. In its ultimate conclusion, the trial
  Court convicted A-1 to 5 and 29 for the offences under Sections
  143, 147, 148,'448 and 302 read with Section 149, IPC. The
H said accused persons were acquitted of the offences
 NOUSHAD@ NOUSHAD PASHA v. STATE OF KARNATAKA                     505
     · [FAKKIR MOHAMED 18RAHIM KALIFULLA, J.]

punishable under Section 1208 and 1538 read with 149, IPC. A
The High Court in the impugned judgment confirmed the above
said conviction of the Appellants while setting aside the
conviction relating toA-4,A-5 andA-29.
      8. In the first instance, while considering the submission
of learned Counsel, we want to note the finding of the trial Court 8
with reference to some of the witnesses who were relied upon
by the High Court while confirming the conviction of the
Appellants. Those witnesses were PW-11, 14, 15, 19, 24, 30,
42, 43 and 44.
      9. Insofar as PW-19 was concerned, when we peruse C
the judgment of the trial Court, we find that in its conclusion the
said witness who was a chance witness has been held to be
wholly unreliable and unbelievable for stated reasons. In the
opinion .of the trial Court, the said witness did not inspire D
confidence and, therefore, it was wholly unsafe to rely upon
the said witness. Having regard to the said categoric findings
of the trial Court that he was a chance witness and that his
evidence was wholly unreliable and unbelievable, the reliance
placed upon the said witness by the High Court for the guilt of
A-2 cannot also be accepted. As far as the said witness was E
concerned. the trial Court while considering his evidence has
specifically stated as under:
     "therefore, the evidence of PW-19 given before the Court
     by identifying A 1, A3, A4 and A29 as the persons present F
     in the said assembly, in absence of specific evidence
     as to the carrying of or possessing deadly weapons with
     them and assaulting the deceased with the said
     weapons, do not appear to be reliable."
     10. After stating so, the trial Court proceeded to state as G
under:
     "therefore:the evidence of PW-19 do not inspire any
     confidence, as it appears to be weak and unbelievable
     as against all accused."
                                                                  H
506       SUPREME COURT REPORTS                  [2014] 14. S.C.R.
                                        .·

A         11.After arriving at the above conclusion as regards the
   reliability of PW-19 in the very neict passage, it proeeeds to
   state that the evidence of PW-19 was corroborated by the other
   eyewitnesses as regards the presence and acts done in the
   commission of crime by A-1,·A-3, Ac4, A-6 andA-29 and,
B therefore, though the evidence of PW-19 was not reliable as a
   whole, his evidence insofar as identifying A-1, A-3 A-4, A-6
   andA-29 as the persons present in the said assembly, was
   believable as corroborative evidence. lt must be. noted here
   that for making such a sweeping and contradictory statement,
C the trial Court has not adduced any convincing and cogent
   reasons to substantiate its conclusion. ·When we consider the
   said conclusion of the trial Court, it must be stated that such a
   conflicting conclusion reacheq by the trial Court without any
   strong convincing reason will be wholly unsafe and it would be
o  dangerous to accept such a-blank conflicting conclusion for
   returning the finding of guilt. When once the trial Court finds
   that the evidence of a particular witness was unreliable and
   unbelievable, we fail to .understa_nd as to how the said Court
   can in the same breath .state. that such an unreliable and
E unlJelievable version can be accepted as·a corroborative
   piece ~f. evidence to prove their complicity in the commission
 · of the crime.
        12. Therefore, pnce the trial Court arrived at the
  conclusion that the evidence.of PW-19 was unreliable and
F unbelievable, it cannot subsequently turn around and state that
  such _an unreliable and unbelievable version can be supportive
  of the version of other witnesses and that too without assigning
  any convincing reasons. It does not appeal to any logic or
  reason for us to accept such a conclusion. Therefore, that part
G of the analysis made by the trial Court by which it reached the
  conclusion that PW-19 was an unreliable and unbelievable
  witness, should go to the benefit of the accused. In the said
  circumstances, the reliance placed upon by the High Court on
  PW-19 to confirm the conviction of A-1 and A-3 cannot also
H be accepted.
 NOUSHAD@ NOUSHAD PASHA v. STATE OF KARNATAKA                        507
      [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

      13. ·Further the trial Court while referring to the evidence   A
of PWs-19,24, 30 and 43 stated that all of them were chance
witnesses since they had gone to the place of incident 6n the
date of occurrence and time by chance in connection with their
personal work or business. Therefore, when PW-19 was a
chance witness and in the conclusion of the trial Court he was       B
an unreliable and unbelievable witness, it will lead to a travesty
of justice if the version of the said witness is to be relied upon
to support the guilt of A-1 and A-3.
       14. When we come to the evidence of PW-24 whose
version was relied upon to support the guilt of A-2 and A-3, the     C
trial Court while examining his evidence stated as under:
      "PW-24 specifically stated that, before giving statement
      to pofice he had ascertained the names and addresses
      of such persons known to him by face from the radio
      repairer. by going to his shop and by giving him the factual D
      identity and their professions within two minutes of the
      incident. This version of PW-24 appears to be
      exaggerative and' therefore do not inspire any
      confidence. Hence renders unreliable as against all the.
      accused whose names he has referred in his statement E
      before the police"
                                         (underlining is ours)
      15. PW-24 had referred about A-1 to A-4, A-29 and A-
44. The trial Court having analyzed his evidence had come to F
the above conclusion. Admittedly, he was not knowing the
names of any of the accused persons. To support his stand
that he saw A-1 to A-4, A-29 and A-44 he claimed that before
giving his statement to the police, he contacted a nearby shop
owner who was also a Muslim and through whom he G
ascertained the names of those individuals and that such
ascertainment was made within a short span of two minutes
and that is how he was able to identify those accused persons.
The trial Court, under this circumstance, had rightly concluded
that such a claim of PW-24 was highly exaggerative and,. H
therefore, the same cannot be relied upon.
508      .. SUPREME COURT REPORTS                      [2014) 14 S.C.R


A            16. After reaching the above conclusion, here again the
      trial Court took a contrary conclusion that his evidence as
      against A-1 to A-4 and A-29 :was acceptable as a
      Corroborative piece of evidence of other eye-witnesses. Such
      a conclusion is diametrically opposite to its. own earlier
B     conclusion that PW-24 was not knowing any of the accused
      referred to by him on his own. The said contrary conclusion of
      the trial Court is, therefore, liable to .be rejected, in which event
      there was no scope to rely upon the evidence.of PW-24.
      Consequently, the reliance placed upon PW-24 by the High
c     Court for confirming the conviction of A-2 and A-3 cannot be
                                                1 · •
      accepted.             ·                             ·•

         17. Whenwecometotheevidenceof PW-30, as stated
                                   ·   •·        I         [

  earlier, PW-30 was also found to be a chance witness as he
  had gone to the place of inCident 6n the date of occurrence
D and time by chance in connection with his' personal work or
  business: As regards his evidence,' after a detailed reference
  to his version, the trial Court has concluded as under:
                  .   •   j'   -             '                 '

              " ....... But, the said witness riowhere stated for having
              seen any of the accused referred to by him in his
E             statement assaulting the deceased with any weapon
              alleged to be possessed by him, either inside the shop
              of the deceased or on the road by chasing. Therefore,
        ·• ·• the evidence'of PW-30 which is self contradictory cannot
             ·be relied upon as a whole, except the evidence stated
 F            about presence of acc·used No.3, 4 and 29 at the said
              place, which is corroborated with evidence of other
              independent eye witnesses ..' ..... "
        18. When the said conclusion'arrived at by the trial Court,
  relating to PW-30 that he was a chance witness and that his
G version was self~contradictory and, therefore, not reliable, his
  version about the presence, in particular of A-3 with whom we
  are presently concerned, cannot alsdbe adverted to inasmuch
  asA-3 has otherwise been held to have been directly involved
  in the commission of the crime, namely, inflicting of injuries on
 H            '
 NOUSHAD@ NOUSHAD PASHAv. STATE OF KARNATAKA                      509
      [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.J

the person of the deceased Lingaraju. Such act of inflicting of A
injuries was stated to be inside the shop of the accused, which
was already surrounded by nearly 35 to 40 persons as stated
by PW-11. Therefore, there was no scope for placing any
reliance upon PW-30 as well, either by the trial Court or by the
High Court to confirm the conviction of A·3.                     B
      19. The next witness which has been referred to and
relied upon by the High Court in the impugned judgment as
againstA-1 and A-3 was PW-43. In fact, with reference to PW-
43, the conclusion of the trial Court as against him was highly
derogatory. In paragraph 18 of the trial Court judgment, the      C
nature of evidence rendered by PW-43 has been mentioned
and it has been observed as under:
     "PW-4;) also st01ted that he was working then in
     Pandavapur and used to visit Kollegal once in a week.
     Therefore. the chance of witnessing of such incident by      D
     being present at the said place. time and date by PW-
     43 appears to be doubtful and the evidence of PW-43
     given by identifying all the accused persons as the
     persons and members of said group which fled away
     from the said place appears to be an exaggeration, when      E
     as admitted by said witness in cross-examination that
     he had never seen any of the accused before that day."
                                       (Underlining is ours)
     20. When such is the caliber of the witness, namely, PW-     F
43 and his version relating to the occurrence, we fail to
understand as to how the High Court was able to rely upon the
said witness in order to find the guilt as againstA-2 and A-3.
      21. The next witness who was relied upon by the High
Court was PW-44 as against all the three Appellants, namely, . G
A-1 to A-3. It was startling to note that with reference to the
said witness, the trial Court has remarked that his version was
contradictory in material aspects as against the case of the
prosecution which was otherwise claimed to be supported by
the other ey~witnesses. Therefore, the version of PW-44 was H
510         SUPREME COURT REPORTS                   (2014] 14 S.C.R.


A     considered not trustworthy as it was exaggerative and wholly
      unbelievable. Hence, the evide.nce of PW-44 in no way
      supported the case of the prosecution.
             22. Having thus noted the version of PW-19, when we
      refer to the evidence of PW-14, in the analysis of the trial Court
B     his evidence was also unreliable and unbelievable. The trial
      Court has remarked as under while referring to the evidence
      of PW-14.
            ''Therefore, the evidence of this witness appears to be
            unreliable and unbelievable as it do· not inspire any
c           confidence in the mind of the Court as against the
            unknown and unidentified persons alleged to be also
            present in the said assembly, moreover the alleged
            words said to be utteFed by .the other unknown and
            unidentified persons said to be present in group, cannot
D           be sufficient to attribute knowledge of the common object
            of committing murder of deceased and joining said
            assembly intentionally an_d continuing in said assembly
           _till object is achi~ved."
                     xxxxxxxxx .
 E
            Therefore, the evidence of PW-14 also cannot be
            accepted as sufficient and reliable to hold A-2, A-4, A-
            23 and A-24 as guilty of the offences under Sections 143,
            147 and 148 of JPC. The very presence of the said
 F          witness at the time of the occurrence appears to be
            suspicious, in view of self-contradictory versions of said
            witness and the contrary evidence to the prosecution
            story and to the evidence of PW-5 and PW-13. All the
            said witnesses examined as PW-5, PW-13 and PW-14
G           are chance witnesses, who happened to have witnessed
            the incident, by being present at said place and time by
            chance. The reasons assigned by said witnesses for their
            presence at the said place and time and their stay at the
            said place do not appear to be natural or probable in
H           view of the material contradictions in their evidence."
 NOUSHAD@NOUSHAD PASHA v. STATE OF. KARNATAKA                         511
      [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

      23. After such a categoric conclusion relating to the           A
unreliability and suspicious version of pW-14, the trial Court
in one breath concluded that his evidence, as regards the
presence and acts of A-2 and A-4 done in commission of the
offences, is considered for corroboration with evidence of eye
witnesses, along with the prosecution witnesses examined as           B
eye witnesses to the incident. In the light of the earlier detailed
reference to the nature of evidence tendered by PW-14 along
with PWs-5 and 13 and the ultimate conclusion of the trial Court
in having held that their evidence was unreliable, unbelievable
and suspicious, it was wholly improper on the part of the trial       C
Court to ultimately state without any justifiable reason that their
version can be accepted for corroboration. Therefore, the
reliance placed upon tne said witness, namely, PW-14 both
by the trial Court as well as ttie High Court cannot be accepted.
      24. When we come to the evidence of PW-15, as noted D.
by the trial Court, he used to sell bananas by stationing his
puller Gadi in front of Anjuman Complex on Ambedkar Road
and that he saw 40 to 45 persons going towards the shop. of
the deceased armed with knives, choppers and .swords. He
further stated that out of the said group, 15 persons trespassed E
into the shop of the deceased while around 20 persons were
standing outside the shop .. He stated that those who
trespassed into the shop assaulted the deceased Lingaraju
with choppers, knives, longs and swords all over the body (viz.)
chest, neck, left hand, back etc. Significantly, he also stated F
that when he saw the deceased Lingaraju escaping from the
shop and running towards the police station, he collapsed in
front of Surya Prabha Hardware shop and at that point of time,
PWs-11 and 24 were running towards that spot. The trial Court
has also specifically noted that the version of PW-15 in the G
course of the cross examination that PW-11 arrived at the place
of occurrence only after the fall of the deceased near the
hardware shop was contrary to the version of PW-11. The trial
Court, therefore, stated that if the said statement of PW-15 is
to be believed, then the evidence of PW-11 would be unreliable H
512         SUPREME COURT REPORTS                   [2014] 14 S.C.R.


A     as regards his witnessing the incident of assault of the
      deceased inside the shop, as well as, outside the shop. The
      above factors, therefore, disclose that the evidence of PW-15
      and PW-11 are self contradictory in nature.
             25. When we analyse the evidence of PW-15 viscacvis
B     the evidence of PW-11, we are convinced that the version of
      both the said witnesses cannot be relied upon for reaching a
      definite conclusion as.to the guilt of the accused, in particular,
      the App~llants ~erein. Moreover, admittedly PW-15, the
      deceased and PW-11 are closely related. The trial Court has
C     also held that the version of PW-15 that he saw A-6 present in
      the group of 15 persons who trespassed into the shop of the
      deceased and assaulted him was contrary to the prosecution
      story and the evidence of other eye witnesses. Admittedly, no
      weapon was recovered at the instance of A-6, while according
D     to PW-15, A-6 was not only in possession of a weapon but
      also used it in the commission of the offence. In the light of the
      above analyses made by the trial Court as regards the version
      of P-15, which consists of very many incongruities relating to
      the factum of occurrence, the presence of witnesses and the
E     overt act alleged against some of the accused, it will be highly
                                           '
      unsafe to place reliance upon the said    witness as regards the
      guilt of the Appellants/Accused.
        26. Having noted the above features relating to PWs•
  14, 15, 19, 24, 30, 43 and 44, we are left with the so-called
F star witness, namely, PW-11 who was none other than the elder
  brother of the deceased Lingaraju. Since, the prosecution
  heavily relied upon the said witness, it is necessary to examine
  the version spoken to by the said witness in some details as
  regards the motive, the place of occurrence, the manner in
G which the act was said to have been committed by the various
  accused, his claim about his presence at the place of
  occurrence and also the extent of the overt act attributed to
  different accused including the Appellants and the subsequent
  conduct of the said witness. After making reference to these
H factors as narrated by him in his evidence as well as noted by
 NOUSHAD@NOUSHAD PASHAv. STATE OF KARNATAKA                      513
      [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

the trial Court in its judgment, it can be examined as to whether A
the heavy reliance placed upon the said witness can be held
to be justified.
       27. In order to analyse the evidence of the said witness
in the first instance, the location where the occurrence took
place as spoken to· by PW-11 in his complaint and as to how B
many of the accused according to him were involved in the
commission of offence has to be noted. The complaint is Exhibit
P-18. The sum and substance of the contents in the said
document was that on 13.02.1999 at about 3 p.m. when PW-
11 was coming from Shringar Hotel after taking coffee towards C
his shop, noticed all of a sudden that about 15 persons
trespassed into his shop and assaulted his younger brother
Lingaraju, the deceased with knife, choppers and the like
mercilessly on his body, back, neck and leg etc. and that while
he was proceeding towards the place of occurrence, D
simultaneously screaming, all the accused persons ran away
from the shop proclaiming that their vengeance was fulfilled
and that the deceased was murdered. He also stated that,
while so, his younger brother, namely, the deceased was
running towards the police station from the shop and fell down E
 near the old post office. He, however, stated that from among
the accused persons who were running away he could note
the three Appellants and that he did not know the names of the
other persons, though he would be in a position to identify them
 if he gets an opportunity to see them.                          F
       28. Keeping the said version of PW-11 immediately after
the occurrence in mind, when we examine the mahazar
prepared atthe place of occurrence, it has been noted therein
that the place of occurrence pointed out by PW-11 was situated
inside the banana shop of PW-11 himself. The size of the shop G
was described as North-South 11 feet and East-West 8 feet
with Mangalore tiled roof top. A cement platform of 3 feet width
and 2% feet height with 9 feet length was stated to be there in
front of the said shop. The mahazar also mentions that the
occurrence took place at the time when the deceased was H
514         SUPREME COURT REPORTS               (2014] 14 S.C.R.


A carrying on his business activity of selling bananas inside the
  South-East corner of the said shop. Again keeping the above
  specific particulars noted in the mahazar based on the
  instructions given by PW-11, it will be necessary to note the
  place where PW-11 was taking coffee, namely,.Shringar Hotel,
B vis-a-vis the exact place where the deceased fell down after
  he was allegedly assaulted by the accused inside the shop
  and the approximate distance as between the shop of PW-
  11 , namely, where the deceased was carrying on the business
  of selling bananas and the place where the deceased fell down
C by referring to the sketch mark, namely, Exhibit P-55 before
  the.trial Court. . •
        - · 29. The above mentioned sketch discloses that the
      banana-shop of PW-11 was situated on the eastern side of
      the main road called Anibedkar Road while the Shringar Hotel
D     was on the western side i.e. on the opposite side where the
      banana shop was located. The distance approximately stated
      to be around 150 feet: PW-11 claimed that when he was
      returning from Shringar Hotel after taking coffee and was
      approaching near the Mahadevswami Clinic, he noticed the
E     crowd which was assembled in front of his banana shop. As
      per the Exhibit P-18 complaint, he noticed not less than 15
      persons who trespassed into his shop. Before the Court, he
      stated that when he was returning back from Shringar Hotel
      along with his friend Parmesh near Geeta Bhawan Hotel, he
 F    saw a group of about 40 to45 persons who were coming from
      Nalanda Gas Agency in front of his banana shop and from
      among them, 15 persons were shouting "Mar do Mar do" who -
      were holding two swords like long, axes and small knives in
      their hands. He also narrated that the deceased Lingaraju was
G     alone in the shop and the mob went inside the shop and
      assaulted him with the said weapons. Considering the said
      version of PW-11, in contrast to the version of PW-15 who
      was stated to be present even before the occurrence took
      place, PW-15 stated in clear terms that when PW-11 arrived,
 H
 NOUSHAD@NOUSHAD PASHA v. STATE OF KARNATAKA                     515
      [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.] .

the deceased had already left the Banana shop running towards    A·
the Police Station and fell down in front of Surya Prabha
Hardware shop.
       30. When we examine the deposition of PW-11, the
relevant factors to be noted are that his banana shop was
situated near Geeta Bhawan onAmbedkar Road, that Surya           B
Prabha hardware shop where the deceased ultimately fell down
was at a distance of 140-150 feet from his banana shop. The
Shringar hotel where PW-11 was taking coffee was situated
in a lane and that while he was returning from the said hotel
after taking coffee he saw 35-40 persons surrounding his shop    C
and 15 persons forcibly entered his shop armed with axe, knife
and long (meaning a long knife) who were assaulting the
deceased Lingaraju. According to him, after the deceased
was attacked inside the banana shop, he somehow escaped
and was running towards the police station after crossing        D
Geeta Bhawan and near Surya Prabha hardware shop where
he collapsed and fell down.
      31. He would state thatA-1 who was present and who
assaulted his deceased brother was holding an axe, thatA-2
who was assaulting his deceased brother was holding a long E
(meaning a long knife), thatA-3 was assaulting his deceased
brother with a long andA-29 was also assaulting his deceased
brother with a sword. After saying so, in the later part of his
evidence, he stated without any ambiguity that M.0.5 sword,
which was shown to him in the Court was found in the hands of F
A-3. He also stated tharthe axe shown to him marked as
M.0.19 was in the hands of A-2. However, he stated that it
was not possible for him to state the weapons held by any of
the accused by identifying the same. He went on to state that
his younger brother i.e., the deceased was assaulted inside G
the shop with the aid of long axe, knife that all the remaining
accused who were 35-40 in number, were standing outside
the shop shouting 'maro maro'and that when his brother was
attempting to escape from the shop the assault continued. He
would further state that when he saw 15 persons entering his H
516         SUPREME COURT REPORTS                  [2014) 14 S.C.R.


A · shop and another group of 30 persons standing outside his
    shop, he was frightened by such a large group formed outside
    his shop and that he could see his brother who was standing
    in front of his shop in order to escape from their clutches,
    running towards Su_rya Prabha hardware shop. He also stated
B that after seeing the assault made by the persons in the group
    on his younger brother, he did not run towards his shop but ran
    towards Surya Prabha hardware shop where his brother fell
    down.
             32. Keeping the various above factors stated by PW-11
C     and also as noted in the Exhibit P-18, the complaint, the
      mahazar as well as P-55 sketch read along with the version of
      PW-15, it will have to be stated that PW-11, who was taking
      coffee in Shringar hotel, which was located in a lane situated
      beyond Surya Prabha hardware shop, even by accepting the
D     fact that he was approaching near Mahadevswami Clinic, which
      was in between the said Shringar hotel and his banana shop,
      the evidence of PW-1.1 could not have been believed insofar
      as it related to the actual occurrence, which admittedly was
      taking place inside his banana shop, the length and breadth
E     of it being 11 ft. x 8 ft. which place was admittedly surrounded
      by nearly 30 persons while 15 persons were stated to be
      inside the said shop of small size. We say so because it would
      have been next to impossible for PW-11 to have witnessed.
      the actual oceurrence that was taking place inside such a small
 F    place which was already occupied by 15 persons and
      surrounded by 30 others outside the shop, taking note of the
      fact that he was located in a place away from the shop near
      Mahadevswami Clinic.
        33. It is necessary to examine and find a definite answer
G to the said question in the light of various allied facts with
  reference to the number of persons, the place from where he
  was witnessing such an assembly, the nature of movement of
  the persons gathered in front of his banana shop, his own
  statement that he was frightened while looking at such a large
H group of persons and that even according to him he saw his
 NOUSHAD@ NOUSHAD PASHA v. STATE OF KARNATAKA                  517
      [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

brother running away from the shop with a view to escape and A
that he did not run towards the shop but was eager to follow
his brother who was running towards Surya Prabha hardware
shop where he ultimately fell down and collapsed. In this context,
the evidence of PW-15, another so called eye witness, was
very categoric to the effect that when PW-11 came to the spot, B
the deceased had already reached Surya Prabha Hardware
Shop where he collapsed.
        34. It was beyond controversy thatthe actual occurrence
 of assault on the deceased Lingaraju took place inside the
 banana shop, the area of which going by the description, could C
 not have been beyond 90-.100 sq. feet. If inside such a small
·place assuming 15 persons had entered and by the time PW-
 11 was approaching near the Mahadevswami Clinic, the
 occurrence had already taken place, it would have been next .
 to impossible for anyone, much less PW-11 to have gone D
 inside.the shop and to have noticed as to who was assaulting
 the deceased with what weapon .. While looking at the place
 of occurrence, even if it is from a nearby place, when the
 particular place of occurrence was surrounded by not less than
 35-40 persons of whom 1'5 persons stated tohave already · E
 entered the place of occurrence, the scope for PW-11 to have
 witnessed the incident with that much of exactitude, as to which
 accused assaulted his brother with what weapon in his hand
 cannot be said to have been really witnessed by him. That
 apart, even by his own version he saw his deceased brother F
 coming out of the shop and trying to escape from the assault
 of persons gathered there who continued to inflict injuries on
 him and on seeing his brother running towards the police
 station, which was beyond SuryaPrabha hardware shop, PW-
 11 himself instead of going towards the shop was following G
 his injured brother who fell down near Surya Prabha Hardware
 and collapsed. The said part of his evidence is consistent with
 the evidence of PW-15.
     35. Apart from the above.inconsistencies which could
be gathered from the evidence of PW-11, his specific overt H
518         SUPREME COURT REPORTS                   [2014] 14 S.C.R.


A     act as againstA-3 that he was holding a long in his hand, was
      falsified by his own statement while identifying M.0.5, which
      was a sword which he stated was found in the possession of
      A-3. Similarly, with reference toA-2 while in the earlier'part of
      his statement, he stated that he was assaulting the deceased
B     with the aid of a long (a long knife) when he identified M.0.-18,
      he stated that it was the said axe which was found in the hands
      of A-2. Here again, PW-11 was not consistent with reference
      to the weapon stated to have been found in the possession of
      A~2. and A-3. A cumulative consideration of his _version
C     discloses that PW-11 could not have witnessed the occurrence
      as spoken to by him. We, therefore, find that the evidenc~ of
      PW-11 was full of inconsistencies and unfortunately the trial
      Court as well as the High Court completely ignored such
      inconsistencies while holding theAppellants guilty of the offence
D     alleged against them.
         36. As has been narrated in. the earlier part of this
  judgment, the High Court placed reliance upon PWs-11, 14,
  15, 19, 24, 30, 43 and 44 to holdthatthe offence as againstA-
  1 to A3 was sufficiently established. When we peruse the
E judgment, we find that the High Court seemed to have totally
  omitted to note relevant findings of the trial Court as regards
  the evidence of PWs-14, 15, 19, 24, 30, 43 and 44 by stating
  that there was no reason to disbelieve their evidence except
  that it suffered from little variations. On the other hand, as has
F been noted by us, by extracting the relevant part of the findings
  of the trial Court wherein the trial Court has given categoric
  finding with reference to each of the above said witnesses,
  that many of them were chance witnesses and were not able
  to give a real picture of what transpired in the place of
G occurrence because of glaring inconsistencies in their evidence
  and, therefore, their evidence was totally unreliable and
  unbelievable. Unfortunately, the High Court without assigning
  any reason perfunctorily held that except minor variations those
  witnesses were eye witnesses and that their version was
 H
  NOUSHAD@NOUSHAD PASHA v. STATE OF KARNATAKA                        519
       [FAKKIR MOHAMEDJBRAHIM KALIFULLA, J.]

believable, trustworthy, natural Which finding was not supported     A
by any convincing reason.
        37. Having regard to the above analysis made by us with
reference to the so-called star witness PW-11 and the other
so-called eye witnesses with reference to whom the trial Court
has made it clear that they were all unreliable and unbelievable,    B
it will be wholly unsafe to rely ori such evidence in order to
confirm the conviction imposed on A-1 to A-3.
       38. For the above stated reasons, we find force in the
.submission of Mr. Altaf Ahmed, learned Senior Counsel that
 though the very version spoken to by the said witnesses             C
 persuaded the trial Court to acquit all other accused, except
 A-1 to A-5 and A-29 and the High Court to acquitA-4, A-5 and
 A-29, for the very same reasoning, the conviction of A-1 toA-
 3 cannot also stand. Consequently, the appeal is allowed. The
 conviction and the sentence imposed on the Appellants are           D
 set aside. The Appellants shall, therefore, be set at liberty
 forthwith unless their detention is required in any other case.

Kalpana K. Tripathy                                Appeal allowed.