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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF OCTOBER 2014
PRESENT
THE HON’BLE MR.JUSTICE N.ANANDA
AND
THE HON’BLE MR.JUSTICE PRADEEP D.WAINGANKAR
CRIMINAL APPEAL No.1239/2010
BETWEEN:
1. SURESHA S/O MAHADEVAPPA, 37 YEARS
2. DAYANANDA S/O MAHADEVAPPA, 42 YEARS
3. NANJUNDASWAMY @ SADDAM HUSAIN S/O MAHADEVAPPA, 35 YEARS
4. MAHADEVAPPA @ KUNDA S/O SUBBANNA, 54 YEARS
5. SHIVANANJAPPA S/O NANJAPPA, 36 YEARS
6. REVANNA S/O BASAPPA, 45 YEARS
7. SHIVANNA @ HUTCHA S/O LINGAPPA, 43 YEARS
8. PRABHUSWAMY S/O DEVAPPA, 43 YEARS
9. SRIKANTAMURTHY @ PRAMA 2
S/O BHAGAPPA, 42 YEARS
10. S NAGARAJU @ HALINA NAGARAJU S/O SUBBAPPA, 44 YEARS
11. B R UMESHA S/O RAMAPPA, 37 YEARS
12. BASAVANNA S/O DEVANNA, 45 YEARS
13. KARIYAPPA @ MAHADEVAPPA S/O MARIMEDAI LINGAPPA, 52 YEARS
14. SWAMY @ JALAMANTRI S/O BARAPPA LINGAPPA, 39 YEARS
15. SHIVAKUMAR @ SUPATTI S/O PUTTASWAMAPPA, 44 YEARS
16. RAJASHEKARA S/O SULDDURAPPA, 51 YEARS
17. SHIVANANDASWAMY @ SWAMY S/O JAVANAPPA, 51 YEARS
18. KRUPASHANKAR S/O GURUSIDDAPPA, 37 YEARS
19. SHIVARUDRAPPA S/O SIDDAPPA, 49 YEARS
20. REVANNA S/O DEVAPPA, 42 YEARS
ALL ARE R/AT BADANAVALU VILLAGE NANJANGUD TALUK MYSORE DISTRICT. ... APPELLANTS
(BY SRI RAVI B.NAIK, Sr.ADVOCATE FOR SRI P. CHANDRASHEKAR, ADVOCATE)
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AND:
STATE BY NANJANGUD RURAL POLICE MYSORE DISTRICT REP. AND INVESTIGATED BY CENTRAL BUREAU OF INVESTIGATION PUBLIC PROSECUTOR BANGALORE. ... RESPONDENT
(BY SRI C.H.JADHAV, Sr.ADVOCATE & SRI P.M.NAWAZ, ADVOCATE)
THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE PASSED IN SPL. CASE NO.38/2003 DATED 28.10.2010/04.11.2010, ON THE FILE OF VI ADDITIONAL SESSIONS JUDGE & SPECIAL COURT UNDER SCHEDULED CASTES AND THE SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT, 1989 AT MYSORE, CONVICTING APPELLANTS/ ACCUSED NOS.1, 4, 6 TO 23 FOR OFFENCES PUNISHABLE UNDER SECTIONS 143, 148, 341, 326, 153A, 302 R/W SEC.149 IPC & ETC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, N.ANANDA. J. , DELIVERED THE FOLLOWING:
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J U D G M E N T
The appellants 1 to 20 were arrayed as accused 1, 4, 6 to 23 respectively in Special Case No.38/2003 and they were tried for offences punishable under sections 143, 148, 341,
326, 153A, 302 r/w 149 IPC and also for an offence punishable under section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
(for short, the ‘Act’). Incidentally, it is necessary to state that final report was filed against accused 1 to 23. Accused No.5 died before charges were framed. Accused 2 and 3 died during trial. Therefore, case against accused 2, 3 & 5 abated.
The learned Special Judge on appreciation of evidence held accused 1, 4 & 6 to 23 guilty of offences punishable under sections 143, 148, 341, 326, 153A, 302 r/w 149 IPC and sentenced them for rigorous imprisonment for periods ranging from 15 days to life and also sentenced them to pay fine of Rs.15,000/- each for an offence punishable under section 302 r/w 149 IPC.
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2. We have heard Sri Ravi B.Naik, learned senior counsel for accused and Sri C.H.Jadhav, learned senior counsel for respondent-C.B.I.
3. The learned senior counsel have taken us through the impugned judgment and evidence of all the prosecution
witnesses.
4. Before adverting to appreciation of evidence of
witnesses and submissions made by learned senior counsel, it is necessary to state the case of prosecution and certain facts which are not in dispute.
5. It is the case of prosecution that accused and private prosecution witnesses, in particular, PW1 to PW10 are natives of Badanavalu Village situate within the jurisdiction of Nanjangud Rural Police Station, Mysore District. The accused belong to Lingayat Caste. PW1 to PW10 and some of the prosecution witnesses belong to Scheduled Caste. There is Sri Siddeshwara Temple in Badanavalu Village. During early part of 1993, Sri Siddeshwara Temple was renovated from funds contributed by the villagers of Badanavalu 6
Village. The differences arose between parties after the inauguration of renovated temple.
6. It is the case of prosecution that accused who belong to Lingayat community of Badanavalu Village were not agreeable for entry of PW1 to PW10 and other persons belonging to Scheduled Caste of Badanavalu Village to Sri
Siddeshwara Temple to perform pooja. The dispute was aggravated, some of the prosecution witnesses gave representations to the District Administrative Officers, including the Deputy Commissioner and Superintendent of
Police. A Peace Committee was formed on 30.01.1993, during Peace Committee meeting, accused and other persons belonging to Lingayat Community, took time to give their consent for entry of PW1 to PW10 and other persons belonging to Scheduled Caste of Badanavalu Village to Sri
Siddeshwara Temple. The second Peace Committee meeting
was scheduled on 26.02.1993. PW1 to PW10 and other persons belonging to Scheduled Caste of Badanavalu Village
wanted to enter Sri Siddeshwara Temple before 26.02.1993, but could not do so, because Sri Siddeshwara Temple was 7
locked. On 02.02.1993, PW1 to PW10 and other persons belonging to Scheduled Caste of Badanavalu Village, in the presence of jurisdictional Tahsildar and jurisdictional police broke open lock and entered Sri Siddeshwara Temple. The accused and other persons belonging to Lingayat community
were enraged by the acts of PW1 to PW10 and other persons belonging to Scheduled Caste of Badanavalu Village. PW1 to
PW10 and other persons belonging to Scheduled Caste also
wanted to perform pooja in the temple and sacrifice a sheep at a place, one kilometer away from Sri Siddeshwara Temple.
Their programme was to perform pooja in Sri Siddeshwara
Temple on 26.03.1993 and sacrifice a sheep near a place at a distance of one kilometer from temple and feed the people of their caste. In that connection, they made a representation to jurisdictional police to give protection to them. These acts had further enraged accused and other persons of their caste, persons belonging to Lingayat caste. They had a strong feeling that sacrificing a sheep would defile the sanctity of temple.
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7. On 25.03.1993 during morning, PW1 to PW10 and other persons belonging to Scheduled Caste of Badanavalu
Village had gone to play a 20:20 cricket match in
Haniyamballi Village. They won the cricket match. Some of their team members took a different route. PW1 to PW10
were returning to Badanavalu Village after taking food in the house of elder sister of PW1-B.S.Ramu. They were proceeding on bicycles on the road between Badanavalu and
Haniyamballi Village. Some of the bicycles were carrying two persons and some bicycles were carrying three persons. They
were proceeding near the land of one Prabhuswamy, on the road between Haniyamballi Village and Badanavalu Village at a distance of 1½ kilometers from Badanavalu Village.
Accused 1 to 23 had formed an unlawful assembly on the road near the land of Prabhuswamy. They were armed with deadly weapons like choppers, knives and clubs. Accused 1 to 23 wrongfully restrained PW1 to PW10 and deceased persons namely B.R.Narayanaswamy, Nataraj and
Madhukar (son of deceased B.R.Narayanaswamy). Some of the accused amongst accused 1 to 23 assaulted deceased 9
B.R.Narayanaswamy, Nataraj and Madhukar with the intention and knowledge of causing their death. They inflicted multiple injuries with choppers, clubs and knives.
The above said B.R.Narayanaswamy and Nataraj died at spot, Madhukar died while he was being shifted to General
Hospital at Nanjangud. The accused assaulted PW2-
B.G.Swamy and PW3-M.Krishnamurthy. Some of the prosecution witnesses ran away and escaped from the assault by accused. PW1 came to Badanavalu Village and took help of villagers of Badanavalu Village and lodged first information with jurisdictional police at 5.30 p.m., on
25.03.1993. PW1-B.S.Ramu had lodged first information against 36 named accused and 25 unnamed accused. At the inception, investigation was conducted by jurisdictional police, later it was handed over to C.B.I. After investigation, final report was filed against accused 1 to 23 as aforestated.
8. Before adverting to submissions made by learned senior counsel for accused and learned senior counsel for
C.B.I., with reference to evidence on record and facts and circumstances of the case, it is necessary to state the 10
homicidal deaths of B.R.Narayanaswamy, Nataraj and
Madhukar during the afternoon of 25.03.1993 have not been controverted. The place of incident has not been controverted.
9. The post-mortem examination report of deceased
B.R.Narayanaswamy (Ex.P.11) would reveal that he had suffered following injuries:-
1. a chopping wound across the occipital region measuring 6” x 2½” x brain deep underlying bone is fractured and the underlying brain is exposed, blood clots seen in and around the wound. 2. an incised wound on the left parietal region measuring 2” x 1” x brain deep underlying bone is fractured, underlying brain is exposed, blood clots seen in and around the wound. 3. another incised wound just behind the wound no.2 measuring 4” x 1½” x brain deep, underlying bone is fractured, underlying brain is exposed, blood clots seen in and around the wound. 4. left pinna is cut at the middle, blood clots seen in and around the wound. 5. an incised wound just above the left eye brow and parallel to it measuring 2” x 1” x bone deep, 11
underlying bone is fractured, underlying brain is seen, blood clots seen in and around the wound. 6. another incised wound just above the wound no.5 and parallel to it measuring 1” x ¾” x bone deep, underlying bone is fractured, blood clots seen in and around the wound. 7. a penetrating wound just above the left nipple measuring 1” x ½” x ½” underlying ribs (3 rd and 4 th ) are fractured, blood clots seen in and around the wound. 8. an incised wound on the outer aspect of right elbow measuring 2” x ½” x bone deep, the underlying bone is fractured, blood clots seen and around the wound. 9. an incised wound on the top of right shoulder measuring 2½” x ½” x bone deep underlying bone is fractured, blood clots seen in and around the wound. 10. skin of the lower limbs, upper limbs, left side of the chest, left side of the abdomen is peeled off here and there. The above injuries were ante-mortem.”
The death was a result of shock and haemorrhage as a result of multiple and grievous injuries over head, chest and limbs.
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10. The post-mortem examination report of deceased
Madhukar (Ex.P.12) would reveal that he had suffered following injuries:-
1. an incised wound across the dorsal aspect of lower third of right forearm measuring 3” x 1” x bone deep, underlying bones are fractured, underlying muscles, vessels and nerves are exposed and cut, blood clots seen in and around the wound. 2. another incised wound just below the wound no.1 and parallel to it measuring 3” x 1” x bone deep, underlying bones are fractured, underlying muscles, vessels and nerves are exposed and cut, blood clots seen in and around the wound. 3. another incised wound across the dorsum of right hand just below the wrist measuring 3” x 1” x bone deep, underlying bones are fractured, underlying muscles vessels and nerves are exposed and cut. 4. another incised wound just below the wound no.3 and parallel to it measuring 3¼” x 1” x bone deep underlying bones are fractured, underlying muscles, vessels and nerves are cut, blood clots seen in and around the wound. 5. an incised wound on the dorsum of left hand measuring 2½” x ¾” x bone deep, underlying bones are fractured, underlying muscles, vessels and nerves 13
are exposed and cut, blood clots seen in and around the wound. 6. terminal phalanx of the left thumb is cut off, blood clots seen in and around the wound. 7. an incised wound across the mid-nape measuring 2½” x ½” x ½”, blood clots seen in and around the wound. 8. an incised wound between the index finger and middle finger of the left hand measuring 1” x ½” x ¼” blood clots seen in and around the wound. 9. an incised wound on the outer aspect of left thigh just above the knee measuring 3” x 2” x 1” underlying muscles, vessels and nerves are exposed and cut, blood clots seen in and around the wound. The above noted injuries were ante-mortem.”
The death was a result of shock and haemorrhage as a
result of multiple grievous injuries.
11. The post-mortem examination report of deceased
Nataraj (Ex.P.13) would reveal that he had suffered following injuries:-
1. an incised wound across the neck at the level of the hyoid bone measuring 4” x 1” x 1” underlying muscles, vessels and nerves are cut – hyoid bone is also cut, blood clots seen in and around the wound. 14
2. an incised wound across the right side of the face and right side of the neck just below the right ear measuring 6” x 1” x 1” underlying bones are fractured, underlying muscles, vessels and nerves are cut, blood clots seen in and around the wound. 3. an incised wound just below the wound no.2 and parallel to it measuring 4” x ¾” x ½” underlying muscles, vessels and nerves are cut, blood clots seen in and around the wound. 4. an incised wound on the right side of the neck just below the wound no.3 and parallel to it measuring 2” x ½” x ¼” underlying muscles, vessels and nerves are cut, blood clots seen in and around the wound. 5. an incised wound just below the wound no.4 and parallel to it measuring 1½” x ¼” x ¼” underlying muscles, vessels and nerves are cut, blood clots seen in and around the wound. 6. an incised wound on the left side of the face extending from the left zygomatic region to left-temporal region cutting the upper half of the left pinna measuring 6” x ½” x bone deep, underlying bones are fractured, underlying muscles, vessels and nerves are cut, blood clots seen in and around the wound. 7. an incised wound across the right knee measuring 3” x 1” x 1” patella is fractured, blood clots seen in and around the wound. 15
8. an incised wound just below the wound no.7 and parallel to it measuring 3½” x 1” x 1” underlying bones are fractured, underlying muscles, vessels and nerves are cut, blood clots seen in and around the wound. 9. an incised wound across the top of the head measuring 1” x ¾” x bone deep, underlying bone is fractured, blood clots seen in and around the wound. 10. skin is peeled off here and there on the right side of the abdomen and right side of forearm. The above injuries were ante mortem.”
The death was a result of shock and haemorrhage due
to multiple grievous injuries over neck, face, head and limb.
12. The MLC register extract of PW2-B.G.Swamy and evidence of PW27-Dr.G.L.Vittal would reveal that PW2-
B.G.Swamy had suffered following injuries:-
I. A lacerated injury on middle of head measuring 6’ x 5’ bone deep.
II. A lacerated injury measuring 3’ x 5’ just above injury
No.1.
III. An Incise injury measuring 6’ x 5’ muscle deep
IV. A lacerated injury measuring 4’ x 2’ on chin 16
V. An incise injury measuring 3’ x 1’ muscle deep on right shoulder
VI. An incise injury measuring 3’ x 1’ on right shoulder muscle deep.
VII. A contusion measuring 3’ x 4’ on right shoulder
VIII. An incise injury measuring 3’ x 1’ on right wrist bone deep
IX. An incise injury measuring 3’ x 5’ below left knee joint bone deep
X. A cut injury on right index finger
XI. A cut injury on left index finger
XII. An incise injury on left wrist measuring 3’ x 11’ bone deep.
13. The contents of MLC register extract of PW3-
M.Krishnamurthy and medical evidence of PW27 would reveal that PW3 had suffered following injuries:-
I. An incise injury on middle of head measuring 3’ x 5’
bone deep
II. Suspected fracture of maxilla with associated
bleeding injuries. 17
III. A contusion below left knee joint.
14. From cross-examination of PW2-B.G.Swamy and PW3-
M.Krishnamurthy and medical evidence of PW27-
Dr.G.L.Vittal, we find that accused have not controverted the injuries suffered by PW2 & PW3, as also injuries suffered by deceased B.R.Narayanaswamy, Nataraj and Madhukar and the cause of their death.
15. The motive suggested by prosecution that there was previous enmity between accused on one side and PW1 to
PW10 and other prosecution witnesses on the other side regarding entry of PW1 to PW10 and other persons of
Scheduled Caste of Badanavalu Village to Sri Siddeshwara temple has not been controverted by accused. The accused have contended that they have been falsely implicated due to previous enmity between them and prosecution witnesses, in particular, PW1 to PW10.
16. From the evidence of PW1 to PW10, we find that PW1 to PW10 were inimical to accused. It can be safely held that
PW1 to PW10 on one side and accused 1 to 23 on the other 18
side were members of opposite factions and Badanavalu village was a faction ridden village.
17. The learned senior counsel for accused, referring to the contents of first information report would submit that in the first information, PW1-B.S.Ramu (first informant) has given the names of 36 persons and has also stated about participation of other 25 unnamed persons in the incident of assault. The final report was filed against 23 persons.
Accused No.15-Basavanna S/o. Devanna, accused No.17-
Swamy @ Jalamantri S/o. Barappa Lingappa, accused
No.18-Shivakumar @ Supatti S/o. Puttaswamappa, accused
No.19-Rajashekara S/o. Sulddurappa and accused No.20-
Shivanandaswamy @ Swamy S/o.Javanappa are not shown in the first information. They were implicated in the final report.
18. The learned senior counsel for accused would submit that first information was allegedly lodged at 5.30 p.m., on
25.03.1993. The first information report had reached the learned Special Judge at Mysore at 3 a.m., on 26.03.1993. 19
There was sufficient time for prosecution witnesses to deliberate to concoct a case against accused.
19. The learned senior counsel for C.B.I. would submit that there were large number of accused and large number of witnesses to the incident of assault. The incident of assault resulted in deaths of three persons namely
B.R.Narayanaswamy, Nataraj and Madhukar and grievous injuries to PW2 & PW3. The incident was a sudden shock to
PW1 to PW10. The incident had occurred during broad day light on the road between Haniyamballi Village and
Badanavalu Village at a distance of 1½ kilometers from
Badanavalu Village. The deceased persons namely
B.R.Narayanaswamy, Nataraj and Madhukar were mercilessly beaten to death by deadly weapons. There was also law and order problem as it was a faction ridden village.
In the circumstances, there was some confusion as to the number of persons, who were actually present and participated in the incident of assault. The Investigating
Officer had taken pains to exclude persons who were implicated in a state of confusion and filed final report 20
against accused 1 to 23. The Investigating Officer was fair. In any event, first information report is not the be and end of the case of prosecution. The learned senior counsel for C.B.I.
would submit that much importance cannot be given to over
implication in the first information.
20. As already stated, Badanavalu is a faction ridden village. PW1 to PW10 are partisan witnesses. Accused 1 to
23 and other persons belonging to Lingayat caste formed one faction and PW1 to PW10 and other persons belonging to
Scheduled Caste formed the opposite faction.
21. As per the case of prosecution, there were as many as
23 accused. The incident of assault resulted in deaths of three persons and grievous injuries to PW2 & PW3, PW1,
PW4 to PW10 were eye witnesses. There was a melee of large number of accused and large number of prosecution
witnesses. The prosecution for the reasons not apparent on record has not examined independent witnesses. It looks probable that independent witnesses had not come forward 21
to give evidence in the incident of assault, which was result of feud between two parties of a faction ridden village.
In the facts and circumstances of the case, it would be useful to refer to following decisions.
22. In a decision reported in AIR 1965 SC 202 (in the case of Masalti Vs. The State of Uttar Pradesh), the Supreme
Court has held:-
“It is true that under the Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. But where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical, but it cannot be treated as irrational or unreasonable. It is, no doubt, the quality of the evidence that matters and not the 22
number of witnesses who give evidence. But sometimes it is useful to adopt a mechanical test. (para 16)”
23. In a decision reported in (2009) 10 SCC 773 (in the case of Pandurang Chandrakant Mhatre & Others Vs. State of Maharashtra), the Supreme Court has held:-
“56. In Muthu Naicker vs. State of T.N. 31, this Court held that where an occurrence takes place involving rival factions, it is but inevitable that the evidence would be of a partisan nature and rejection of such evidence on that ground may not be proper. This Court put a word of caution that such evidence needs to be examined with utmost care and caution. This is what this Court said : (SCC pp.390-91, para 6)
“6. Where there is a melee and a large number of assailants and number of witnesses claim to have witnessed the occurrence from different places and at different stages of the occurrence and where the evidence as in this case is undoubtedly partisan evidence, the distinct possibility of innocent being falsely included with guilty cannot be easily ruled out. In a faction-ridden society where an occurrence takes place involving rival factions it is but 23
inevitable that the evidence would be of a partisan nature. In such a situation to reject the entire evidence on the sole ground that it is partisan is to shut one's eyes to the realities of the rural life in our country. Large number of accused would go unpunished if such an easy course is charted. Simultaneously, it is to be borne in mind that in a situation as it unfolds in the case before us, the easy tendency to involve as many persons of the opposite faction as possible by merely naming them as having been seen in the melee is a tendency which is more often discernible and is to be eschewed and, therefore, the evidence has to be examined with utmost care and caution. It is in such a situation that this Court in Masalti v. State of U.P. 32 adopted the course of adopting a workable test for being assured about the role attributed to every accused. To some extent it is inevitable that we should adopt that course.”
57. In State of U.P. v. Ballabh Das 33 , this Court held that evidence of interested witnesses may be relied upon if such evidence is otherwise trustworthy. This Court said : (SCC pp.704-05, paras 3-5) 24
“3. .... What the law requires is that where the witnesses are interested, the court should approach their evidence with care and caution in order to exclude the possibility of false implication. We might also mention that the evidence of interested witnesses is not like that of an approver which is presumed to be tainted and requires corroboration but the said evidence is as good as any other evidence. It may also be mentioned that in a faction-ridden village, as in the instant case as mentioned by us earlier, it will really be impossible to find independent persons to come forward and give evidence and in a large number of such cases only partisan witnesses would be natural and probable witnesses. This Court in Badri v. State of U.P. 34 made the following observations: (SCC p. 616, para 6) In case where a murder takes place in a village where there are two factions bitterly opposed to each other, it would be idle to expect independent persons to come forward to give evidence and only partisan witnesses would be natural and probable witnesses to the incident. In such a case, it would not be right to reject their testimony out of hand merely on the ground that they belonged to one faction or 25
another. Their evidence has to be assessed on its own merits.
4. * * *
58. A similar view has been echoed by this Court in State of U.P. v. Ram Swarup 35 wherein this Court held : (SCC p.265, para 10)
“10. … There is no rule of law to the effect that the evidence of partisan witnesses cannot be accepted. The fact that the witnesses are associated with the faction opposed to that of the accused by itself does not render their evidence false. Partisanship by itself is no ground for discarding sworn testimony. Interested evidence is not necessarily false evidence. In a small village like the one under consideration where people are divided on caste basis, the prosecution may not be able to get any neutral witness. Even if there is any such neutral witness, he will be reluctant to come forward to give testimony to support one or the other side. Therefore, merely because the eyewitnesses are associated with one faction or the other, their evidence should not be discarded. It should, no doubt, be subjected to careful scrutiny and accepted with caution.”
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65. Section 149 IPC creates a specific and distinct offence. Its two essential ingredients are:
(i) commission of an offence by any member of an unlawful assembly and; (ii) such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew it be likely to be committed.
67. In Sherey v. State of U.P. 36 , this Court held: (SCC p.440, para 4)
“4. … But when there is a general allegation against a large number of persons the Court naturally hesitates to convict all of them on such vague evidence. Therefore we have to find some reasonable circumstance which lends assurance. From that point of view it is safe only to convict the abovementioned nine accused whose presence is not only consistently mentioned from the stage of FIR but also to whom overt acts are attributed.”
68. In Musa Khan. v. State of Maharashtra 37 , this Court observed: (SCC p.736, para 5)
“5. …Thus a court is not entitled to presume that any and every person who is 27
proved to have been present near a riotous mob at any time or to have joined or left it at any stage during its activities is in law guilty of every act committed by it from the beginning to the end, or that each member of such a crowd must from the beginning have anticipated and contemplated the nature of the illegal activities in which the assembly would subsequently indulge. In other words, 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 these stages.”
69. In Nagarjit Ahir v. State of Bihar 38 , this Court applied rule of caution and in the facts and circumstances of the case held that
“it may be safe to convict only those persons against whom overt act is alleged with the aid of Section 149 IPC lest some innocent spectators may get involved.”
24. We have referred to aforestated decisions to follow the principles of law that merely because prosecution witnesses are partisan witnesses, their evidence cannot be rejected, 28
however, their evidence has to be carefully scrutinized before acceptance.
25. As already stated, there are 23 accused, 10 eye-
witnesses, including two injured witnesses, besides there
were three deceased persons, who succumbed to injuries suffered in the incident of assault. PW1 to PW10 and deceased persons belonged to one faction and accused belonged to the opposite faction. Therefore, it is necessary for us to satisfy about the credibility and consistency of evidence adduced by prosecution, in particular, evidence of
PW1 to PW10 regarding presence and participation of accused 1 to 23 in the incident of assault.
26. In a decision reported in (2009) 10 SCC 773 (in the case of Pandurang Chandrakant Mhatre & Others Vs. State of Maharashtra), the Supreme Court has held that legal position laid down in Masalti case reported in AIR 1965 SC
202, admits that it is, no doubt, the quality of evidence that matters and not the number of witnesses who give evidence 29
and the same principle of law has been followed time and again.
In the case on hand, PW1 had lodged first information against 36 named accused and 25 unnamed accused. At the inception, investigation was conducted by jurisdictional police and later investigation was handed over to C.B.I. The final report was filed against accused 1 to 23. This circumstance would also put to court on guard while appreciating evidence of PW1 to PW10 (eye-witnesses, including injured eye-witnesses namely PW2 and PW3). Their evidence needs close scrutiny before acceptance.
27. The presence of PW2 and PW3 and deceased persons near the place of incident has not been seriously controverted by the accused. The evidence of PW1 to PW10 that deceased persons namely B.R.Narayanaswamy, Nataraj and Madhukar died homicidal death consequent to injuries suffered in the incident of assault has not been controverted.
The prosecution has adduced satisfactory evidence in proof of the same. The evidence of PW2 and PW3 that they had 30
suffered injuries due to assault in the incident has not been seriously controverted. It has not been suggested to PW2 and
PW3 that injuries were self-inflicted or they had suffered injuries by other means.
28. PW1-B.S.Ramu is the first informant. PW1 has given evidence relating to motive and previous enmity between parties. PW1 has deposed about events which had accelerated the feud between parties. PW1 has deposed that few days before the date of incident, they had invitation to play a 20:20 cricket match organized by Vinodini Cricket
Club of Haniyamballi Village; PW1 to PW10 and others had gone to Haniyamballi Village on their bicycles; tennis ball
20:20 cricket match which commenced at 8.30 a.m., on
25.03.1993, concluded by 11.30 a.m., and the team led by deceased B.R.Narayanaswamy, which consisted of PW1 to
PW10 won the cricket match; thereafter, PW1 took his teammates to the house of his elder sister and they had lunch; thereafter, they left Haniyamballi Village at 12.30 p.m., on their bicycles. PW1 has given details of witnesses riding bicycles and their respective pillion riders. When the 31
tyre of bicycle ridden by PW9-S.Kumar got punctured, deceased B.R.Narayanaswamy, PW1, PW9, Revanna,
Sridharamurthy and A.Somanna told them to set right the punctured wheel of bicycle of PW9; bicycle repair shop was not there, two of the bicycles carried two pillion riders.
29. PW1 has deposed; when they reached near land of one
Prabhuswamy, there was a crowd of persons consisting of accused; accused confronted PW2-B.G.Swamy, who was proceeding ahead.
30. Accused no.7-Mahadevappa @ Kunda assaulted on the head of PW.2-B.G.Swamy with a club. The other accused came and surrounded PW.2 and others and started beating them. PW.1 and some of the prosecution witnesses scattered and ran away from the place to save themselves from assault by accused; accused no.3-Chandrashekara @ Shekara assaulted deceased Nataraj and Madhukar and PW.3-
M.Krishnaswamy with a club. The incident of assault on the aforestated persons took place near the land of one
Prabhuswamy; accused no.7 assaulted Madhukar, Nataraj 32
with a chopper; accused no.6-Nanjundaswamy @ Saddam
Hussain chased Nataraj and Madhukar and assaulted them
with a chopper in the land of Prabhuswamy; accused no.10-
Shivanna @ Hutcha assaulted deceased Nataraj and
Madhukar with a knife; accused no.13-Nagaraja @ Halina
Nagaraj assaulted deceased Madhukar and Nataraj with a knife and also abused stating that persons belonging to schedule caste have defiled the temple; accused no.9-
Revanna assaulted deceased Nataraj with a cycle chain; accused no.11-Prabhuswamy assaulted PW.3-
M.Krishnamurthy with a club; accused no.1-Suresha also assaulted PW.2-B.G.Swamy with a club; accused no.16, 18 and 19 were present; they were assaulting Nataraja and
Madhukar. PW.1 has deposed about the overt acts of accused no.13, 7 and 10.
31. PW.1 has deposed; that after the incident of assault, they came to Devanur and informed the matter to one
Mahadeva of Devanur. They took PW.1 and Kumara to
Kaulande Police Station. The PSI namely Siddaraju brought them to their village (Badanavalu). After reaching 33
Badanavalu, he learnt about the death of Narayanaswamy,
Nataraja and Madhukar.
32. At this juncture, it is necessary to state that PW.1 had lodged the first information against 36 named accused and
25 unnamed persons and the final report was filed against accused no.1 to 23. The first information lodged by PW.1 to some extent, would indicate that PW.1 had tendency to implicate as many persons of the opposite faction as possible.
During cross-examination, PW.1 has admitted that some of the accused whom he had named in the first information were given up in the final report. He had no grievance against the persons given up as they had been rightly given up by the investigation officer. Therefore, evidence of PW.1 requires corroboration from evidence of other prosecution witnesses before its acceptance.
33. It is necessary to appreciate evidence of PW.2 to PW.10
with a guarded approach. The evidence of PW.2 to PW.10 needs close scrutiny before acceptance. It is also necessary 34
to bear in mind that evidence of PW.1 to PW.10 was recorded after a period of fifteen and half years from the date of incident. It is seen from evidence that PW.2 to PW.10 are subjected to lengthy cross-examination and much of their cross-examination is directed towards events which led to feud between accused and PW.1 to PW.10. It is not necessary to refer to cross-examination of PW.2 to PW.10 as it relates to motive. Apart from evidence of PW.2 to PW.10,
we have evidence of official witnesses to prove that there was enmity between accused and PW.1 to PW.10, the reason for enmity being the resistance of accused to bar the entry of
PW.1 to PW.10 and persons of scheduled caste to Sri
Siddeshwara temple. The prosecution has relied on direct evidence. The motive looses its significance. Therefore, we deem it proper to appreciate evidence of PW.2 to PW.10 relating to incident of assault.
34. PW.2-B.G.Swamy has deposed about participation in the cricket match in Haniyamballi village. PW.2 has deposed;
when they reached the place of incident (Kala Subbayyana
Katte at a distance of 2 kilometers from Badanavalu village) 35
at about 1.30 p.m., on 25.03.1993, accused no.7-
Mahadevappa @ Kunda came to the road and assaulted on head of PW2 with a club; Accused no.16-Kariyappa @
Mahadevappa assaulted on hands of PW.2 with a knife
(Mulberry leaves cutting knife); accused no.6-
Nanjundaswamy @ Saddam Hussain assaulted on lower limbs of PW.2 with a chopper; accused no.17-Swamy @
Jalamantri assaulted PW.2; when he was being assaulted,
PW.3-Krishnamurthy, deceased Madhukar and
Narayanawamy were coming on their bicycles to that place; at that time, they were surrounded by other accused; accused no.16-Kariyappa @ Mahadevappa instigated the other accused to catch hold of Master’s son (deceased
Madhukar).
During cross-examination, PW.2 has admitted that
PW’s.1 to 10 are the members of Ambedkar Sangha of
Badanavalu village. Deceased B.R.Narayanaswamy was the
Advisor. The deceased Narayanaswamy was also working as school teacher.
36
During cross-examination, PW.2 has deposed that the road near the place of incident was 15 feet wide and there
was a small bridge. PW.2 did not observe if there were independent witnesses to the incident of assault. PW.2 has deposed; that he could identify accused no.7-Mahadevappa
@ Kunda, accused no.16-Kariyappa @ Mahadevappa,
accused no.5-Mahesha (since dead), accused no.6-
Nanjundaswamy @ Saddam Hussain and accused no.17-
Swamy @ Jalamantri when they were coming at a distance of
3 feet from the opposite direction. PW.2 has been cross-
examined to elicit number of blows dealt on him and number
of injuries suffered by him in the incident of assault.
35. In para 12, we have narrated the injuries suffered by
PW.2. The incident of assault had taken place in a broad day light. The accused and PW.2 were known to each other.
There was no difficulty for PW.2 to identify the accused. The medical evidence and injuries suffered by PW.2 narrated in para 12, would lend corroboration to direct evidence of PW.2.
PW.2 would be least disposed to implicate the aforestated accused leaving aside the real culprits. As there were large 37
number of accused and large number of witnesses, we cannot expect PW.2 to particularise the blows and give vivid description of sequence of events of incident of assault.
Therefore, we hold that accused no.6-Nanjundaswamy @
Saddam Hussain, accused no.7-Mahadevappa @ Kunda, accused no.16-Kariyappa @ Mahadevappa, accused no.17-
Swamy @ Jalamantri were the members of unlawful assembly ad they had assaulted PW.2 with clubs and knives and caused as many as twelve injures to him. They had come armed to the place of incident and had formed into unlawful assembly the common object was to assault PW.2, deceased Narayanaswamy, Madhukar, Nataraj and other prosecution witnesses, who were the members of opposite faction of accused.
36. PW.3-Krishnamurthy was injured in the incident of assault. In paragraph 13, we have narrated the injuries suffered by PW.3. It is not in dispute that PW.3 belonged to faction of scheduled caste persons of Badanavalu village. The evidence of PW.3 that they had gone to play cricket match at
Haniyamballi village and after completion of the match, they 38
were returning from Haniyamballi village to Badanavalu has not been seriously controverted.
37. PW.3-Krishnamurthy has deposed; that he came near the place of incident as a pillion rider of bicycle ridden by deceased Nataraj. Deceased Madhukar and
B.R.Narayanaswamy and other prosecution witnesses were following him on bicycles; they came near the place of incident; PW.2-B.G.Swamy stopped his bicycle, one
Ramachandra (pillion rider) cried that there was a crowd of assailants near that place; PW.2-B.G.Swamy stood at that place without getting down from the bicycle; accused no.7-
Mahadevapa @ Kunda, accused no.3-chandrashkeara (since dead), accused no.5-Mahesha (since dead), accused no.6-
Nanjundaswamy, accused no.13-Halina Nagaraj and accused no.4-Dayananda surrounded and assaulted PW.2-
B.G.Swamy; accused no.7-Mahadevappa @ Kunda assaulted on the head and limbs of PW.2-B.G.Swamy with a club; accused no.16-Kariyappa assaulted PW.2 with a knife; accused no.13-Nagaraja @ Halina Nagaraj assaulted PW.2
with a chopper; PW.2 suffered bleeding injuries all over his 39
body and fell on the ground; thereafter accused started assaulting deceased Nataraj; accused Revanna assaulted on the head of Nataraja with a chopper; accused no.4-
Dayananda assaulted on the back of Nataraj with a club; accused no.7-Mahadevappa @ Kunda assaulted on the left hind portion of head of deceased Nataraja with a club; deceased Nataraja had suffered multiple injuries and he had fallen on ground; PW.3 had taken few steps to run away from that place; at that time, he was confronted by accused no.5-Mahesha (since dead), accused no.10-Shivanna @
Hutcha assaulted on the head of PW.3 with a chopper; accused no.6-Nanjundaswamy assaulted PW.3 on the left ear of PW.3 with a chopper; accused no.3-Chandrashekara
(since dead) and accused no.4-Dayananda assaulted PW.3
with clubs; he suffered grievous injuries and fell down.
38. PW.3-M.Krishnamurthy has deposed; that accused no.6-Nanjundaswamy @ Saddam Hussain assaulted on the private parts of Madhukara with a chopper; accused no.13-
Nagaraj and accused no.5-Mahesh (since dead) assaulted deceased Madhukar; the accused assaulted deceased 40
B.R.Narayanaswamy when he intervened to save Madhukara
(his son); accused no.16-Kariyappa @ Mahadevappa, accused no.13-Nagaraja, accused no.6-Nanjundaswamy, accused no.8-Shivananjappa wrongfully restrained deceased
B.R.Narayanaswamy; accused no.16-Kariyappa assaulted on the head of B.R.Narayanaswamy with a knife; accused no.8-
Shivananjappa, accused no.13-Nagaraju @ Halina Nagaraj assaulted deceased B.R.Narayanaswamy with clubs and thereafter, they ran away towards Devanur.
During cross-examination of PW.3, there was an attempt to elicit certain omissions, which in our considered opinion are not omissions amounting to material contradictions. Much of cross-examination of PW.3 has been directed against assault on PW.2-B.G.Swamy, deceased
Nataraja, B.R.Narayanaswamy and their assailants.
During cross-examination of PW.3, the defence has attempted to elicit the distance between PW.3 and deceased
Madhukar and B.R.Narayanaswamy at the time of incident and before the incident. In our opinion, such minute details cannot be expected from PW.3 as there were large number of 41
accused, large number of witnesses which included two injured witnesses and three deceased persons.
39. PW.3 has deposed; that accused came from behind a bush and suddenly confronted them. PW.3 was injured in the incident of assault. He has deposed the names of his assailants. The evidence of PW.3 cannot be discarded on the ground that he was inimical to the accused. He had also
witnessed assault on deceased B.R.Narayanaswamy and
PW.2-B.G.Swamy.
40. On careful scrutiny of evidence of PW.3, we find his evidence regarding presence and participation of accused no.4-Dayananda, accused no.6-Nanjundaswamy @ Saddam
Hussain, accused no.7-Mahadevappa @ Kunda, accused no.9-Revanna, accused no.10-Shivanna @ Hutcha, accused no.13-Nagaraju @ Halina Nagaraj and accused no.16-
Kariyappa @ Mahadevappa as members of unlawful assembly and the overt acts attributed to them, is consistent and credible.
42
41. PW.4-R.Ramesh has deposed; that PWs.4 and 1 to 3, 5 to 10 were returning to their village on bicycles, when they came near a bridge at a distance of 2 ½ km from their village, they saw a crowd of persons. When they proceeded to a distance of 100 feet, accused No.7-Mahadevappa @
Kunda assaulted on head of PW.2 B.G. Swamy with a club.
At that time, they saw a crowd of persons armed with choppers and clubs was coming towards PW.4 and others.
PW-4 has deposed that accused No.5-B.N.Mahesha (since dead), accused No.14-B.R. Umesha, accused No.6-
Nanjundaswamy @ Saddam Hussain were present in the crowd and they were armed with weapons. PW.4-R.Ramesh and others started running away from that place. At that time, accused No.7-Mahadevappa @ Kunda assaulted PW.2-
B.G. Swamy and accused chased PW.4-R. Ramesh. After running to a distance of 250 feet, he stopped and he was
joined by 4 persons of his faction. PW-4 saw accused No.14-
B.R.Umesha assaulting deceased-Madukara with a club.
Accused No.4-Dayananda and accused No.6-Nanjunda
Swamy assaulting Nataraj (since deceased) with choppers 43
and knife. When deceased-Narayana Swamy came running to that place, accused No.2-Parvathammana Basappa (since dead) was instigating other accused. A crowd of accused, surrounded B.R.Narayanaswamy (since dead) and assaulted him, PW.4-R.Ramesh has identified accused No.11-
Prabhuswamy, accused No.16-Kariyappa @ Mahadevappa in the crowd of accused, which was assaulting
B.R.Narayanaswamy (since deceased).
During cross-examination by the learned counsel for accused, PW.4-R.Ramesh has admitted that there were 60 to
70 persons in the crowd. He has reiterated presence of accused No.5-B.N.Mahesha (since dead), accused No.14-
B.R.Umesha, accused No.7-Mahadevappa @ Kunda and accused No.4-Dayananda in the crowd. PW.4 has deposed that they were armed with weapons. PW.4 has deposed that accused No.14-B.R.Umesha assaulted Madhukara (since deceased) with a chopper. PW.4-R.Ramesh has deposed that accused No.4-Dayananda and accused No.6-
Nanjundaswamy @ Saddam Hussain assaulted deceased-
Nataraj (since deceased) with choppers and knife. PW-4 has 44
denied the suggestions that deceased B.R.Narayanaswamy,
Madhukar and Nataraj were teasing some girls who were going on the road and therefore, they were assaulted.
The learned senior counsel for accused would submit that PW.4-R.Ramesh had not suffered injuries in the incident of assault. The evidence of PW.4-R.Ramesh would demonstrate that after seeing crowd of persons armed with
weapons, he ran away from the place of incident. The evidence of PW.4 that he ran to a distance of 200 feet and thereafter he witnessed the incident of assault cannot be accepted.
42. The evidence of PW.4-R.Ramesh cannot be suspected merely because he had run to a safe place. It is not unusual for a witness to run to a safe distance to save himself.
Therefore, conduct of PW.4-R.Ramesh running away from the place of incident and seeing the incident from a safe distance cannot be a ground to disbelieve his evidence.
From the evidence of PW-4-R.Ramesh, we find the presence and participation of accused No.4-Dayananda, accused
No.6-Nanjundaswamy @ Saddam Hussain, accused No.7- 45
Mahadevappa @ Kunda and accused No.14-B.R.Umesha. He had also identified the presence of accused No.11-
Prabhuswamy and accused No.16-Kariyappa @
Mahadevappa as members of unlawful assembly. The evidence of PW-4-R.Ramesh that he had seen accused
No.11-Prabhuswamy and accused No.16-Kariyappa @
Mahadevappa needs to be examined in the light of evidence of other witnesses. At this juncture, it is relevant to recall the evidence of PW-3-M.Krishnamurthy, who has deposed that accused No.16-Kariyappa @ Mahadevappa scolded
Narayanaswamy and assaulted on his head with a knife.
PW-1-B.S.Ramu has deposed that accused No.11-
Prabhuswamy assaulted PW-3-M.Krishamurthy with a club.
Therefore, presence and participation of accused No.11-
Prabhuswamy and accused No.16 Kariyappa as members of unlawful assembly is proved from the evidence of PWs.1, 3 and 4.
43. PW.5-Sridhara Murthy has not given evidence of the entire incident of assault. PW-5-Sridhara Murthy has deposed; when they reached place of incident, accused 46
No.2-Parvathammana Basappa (since dead) instigated other accused to kill PWs.1 to 10 and also abused them by taking out the name of their caste. Accused surrounded and assaulted PW.2-B.G. Swamy, Madhukara (since deceased) and B.R.Narayanaswamy (since deceased). PW.3-
M.Krishnamurthy was also assaulted by accused. From the evidence of PW.5-Sridhara Murthy, we find that he has made an omnibus statement. The discernable part in the evidence of PW.5-Sridhara Murthy is that accused No.2-
Parvathammana Basappa (since dead) instigated other accused to kill PWs-1 to 10. Accused No.2-Parvathammana
Basappa is dead. Therefore, there is no need to consider evidence against accused No.2-Parvathammana Basappa.
44. PW.6-Narayana Swamy has deposed; he was riding a bicycle and Madhukar (since dead) was the pillion rider
when they reached Kalasubbaiahnakatte on the road leading to Badanavalu village, accused No.2-Parvathammana
Basappa was calling other accused. The other accused namely accused No.5-B.N.Mahesha (since dead), accused
No.14-B.R.Umesha, accused No.6-Nanjundaswamy @ 47
Saddam Hussain, accused No.8-Shivananjappa, accused
No.3-Chandrashekara @ Shekara (since dead), accused
No.4-Dayananda and Revanna followed accused No.2-
Parvathammana Basappa and they were armed with deadly
weapons like choppers and clubs. They chased PW.6-
B.R.Narayanaswamy. Accused No.6-Nanjundaswamy @
Saddam Hussain tried to assault PW.6-B.R.Narayanaswamy
with a chopper, the blow grazed him. Thereafter, PW.6 ran
to a little distance. The accused left PW.6 and held Nataraj
(since dead). Accused No.5-B.N. Mahesha (since dead) and
accused No.6-Nanjundaswamy @ Saddam Hussain assaulted
on the neck of deceased-Nataraj (since dead) with choppers.
Thereafter, other accused namely Revanna, accused No.4-
Dayananda, accused No.8-Shivananjappa, accused No.3-
Chandrashekara @ Shekar (since dead) came to place where
Nataraj (since dead) had fallen. Accused No.7 Mahadevappa
@ Kunda and accused No.14 Umesh assaulted Madhukar
(since dead) with clubs. PW.6 ran away and reached his
Village. 48
During cross-examination, PW.6 has reiterated that he had seen accused No.7-Mahadevappa @ Kunda at the place of incident from a distance of 100 feet. PW.6 has deposed that accused No.7-Mahadevappa @ Kunda was armed with a club. PW.6 has deposed that he cannot give nature of
weapons held by each of the accused. PW.6 has reiterated that he was chased by accused No.3-Chandrashekara @
Shekar (since dead), Revappa, accused No.14-B.R.Umesha, accused No.6-Nanjundaswamy @ Saddam Hussain, accused
No.5-B.N.Mahesha (since dead), accused No.8-
Shivananjappa, accused No.4-Dayananda. He has reiterated that deceased-Nataraj (since dead) was assaulted by the accused No.5-B.N. Mahesha (since dead). He has reiterated that accused No.5-B.N.Mahesha (since dead) and accused
No.6-Nanjundaswamy @ Saddam Hussain inflicted cut injuries on the neck of Nataraj (since dead). At this juncture, it is relevant to refer to contents of post-mortem examination report of deceased-Nataraj (Ex.P13) which would reveal that he had suffered following injuries:- 49
i) An incised wound across on neck at the level of the tyoid bone measuring 4” x 1” x 1”. ii) An incised wound across the right side of the face and right side of the neck just below the right ear measuring 6” x 1” x 1”, underlying muscles, and nerves are cut, blood, clots seen in and around the wound. iii) An incised wound just below the wound No.2 and parallel to it, measuring 4” x 3/4” x 1/2" underlying muscles, vessles and nerves are cut, blood clots seen in and around the wound. iv) An incised wound on the right of the neck which is below injury No.iii. v) An incised wound just below the wound no.4 and parallel to it measuring 1½” x ¼” x ¼” underlying muscles, vessels and nerves are cut, blood clots seen in and around the wound. On perusal of post-mortem examination report of deceased Nataraj, (Ex.P-13) we find that deceased-Nataraj had suffered multiple cut injuries on his neck. These injuries 50
would lend credibility to evidence of PW.6-Narayanaswamy that accused No.5-B.N.Mahesha (since dead) and accused
No.6-Nanjundaswamy @ Saddam Hussain inflicted injuries on the neck of deceased-Nataraj with sharp edged weapons.
On careful consideration of evidence of PW.6-
Narayanaswamy, we find that accused No.2-Parvathammana
Basappa (since dead), accused No.4-Dayananda, accused
No.5-B.N.Mahesha (since dead), accused No.6-
Nanjundaswamy @ Saddam Hussain and accused No.8-
Shivananjappa were armed with weapons and they tried to attack PW-5-Sridhara Murthy. Accused Nos.5-B.N.Mahesha
(since dead) and accused No.6-Nanjundaswamy @ Saddam
Hussain assaulted deceased-Nataraj with choppers and knives.
45. PW.7-Devanna has deposed; when he reached the place of incident, accused No.7-Mahadevappa @ Kunda was assaulting PW.2-B.G. Swamy. Accused No.4-Dayananda
was also assaulting PW.2-B.G. Swamy. Accused No.6-
Nanjundaswamy @ Sadam Hussain and accused No.17-
Swamy @ Jalamantri were assaulting Nataraj (since dead) 51
with deadly weapons. Nataraj (since dead) had suffered bleeding injuries. When B.R.Narayanaswamy (since dead)
went to rescue his son Madhukar (since dead) Nataraj, they assaulted B.R.Narayanswamy (since dead) and deceased-
Madhukara (since deceased). Accused No.6-Nanjundaswamy
@ Saddam Hussain and A5 Madhukar (since dead) chased
PW-7-Devanna.
During cross-examination, PW.7 has reiterated the incident of assault. PW.7 has deposed that PW.2-B.G.
Swamy and by accused one deceased-Narayanaswamy (since dead) were assaulted by accused on the road. PW.3-
M.Krishna Murthy was assaulted in the land of one Prabhu
Swamy. There are no reasons to suspect the presence of
PW-7-Devanna and the evidence of PW-7-Devanna.
Therefore, evidence of PW-7-Devanna, would prove presence and participation of accused No.4-Dayananda, accused
No.6-Nanjundaswamy @ Saddam Hussain, accused No.7-
Mahadevappa @ Kunda and accused No.17-Swamy @
Jalamantri in the incident of assault and they were the members of unlawful assembly. 52
46. PW-8-K. Ramesh has deposed; when he reached the place of incident, there was a crowd of 50 to 60 people which included accused. Accused No.7-Mahadevappa @ Kunda, accused No.5-B.N. Mahesha (since dead) Revanna and accused No.4 Dayananda and other accused assaulted
PW.2-B.G. Swamy with clubs and chopper. PW.8-K.Ramesh escaped and ran towards his village.
During cross-examination by the learned counsel for accused, PW.8 has deposed that he identified accused who had assaulted PW.2-B.G.Swamy. He has deposed that about
10 persons were surrounded and assaulted deceased-
Madhukar (since deceased). He cannot give particulars of parts of body of PW.2-B.G.Swamy, which were injured due to the incident of assault. PW.8 ran away from that place soon after PW.2-B.G. Swamy and three others were assaulted by accused. In our considered opinion, questions put to this
witness during cross-examination are rather vague. PW.8-
K.Ramesh, who had witnessed the incident wherein several
accused were involved, cannot be expected to give
particulars of parts of body on which the blows dealt by 53
accused had landed. He cannot be expected to give a vivid description of incident of assault.
The evidence of PW.8-K.Ramesh proves that accused
No.7-Mahadevappa @ Kunda, accused No.4-Nanjundaswamy
@ Saddam Hussain and assaulted deceased-Nataraja (since dead) and deceased-Madhukar (since dead) with deadly
weapons. We are excluding evidence of PW8 against accused no.5 – Mahesh, in view of death of accused no.5 during trial.
47. PW-9-S.Kumar has deposed; when they reached
Kalasubbanakatte on the way to their village, accused No.7-
Mahadevappa @ Kunda was armed with a club and he was standing by the side of road. At that time, accused No.3-
Chandrashekar (since dead), accused No.4-Dayananda, accused No.1-Suresha, accused No.6-Nanjundaswamy @
Saddam Hussain, accused No.13-S. Nagaraju @ Halina
Nagaraj armed with deadly weapons surrounded them.
Accused No.7-Mahadevappa assaulted on the head of B.G.
Swamy with a club. Accused No.13-Nataraj assaulted on right hand of PW-2 with a chopper. Amongst prosecution
witnesses PW.1 to PW.10, PW-8-K.Ramesh, deceased- 54
Nataraj, deceased-Madhukar, deceased-Narayanaswamy,
PW-10-B.M.Revann and others tried to run away towards land of one Prabhuswamy, the accused surrounded them.
Accused No.6-Nanjundaswamy @ Saddam Hussain, accused
No.18-Shivakumar held Nataraj (since dead). Accused
No.13-S.Nagaraj @ Halina Nagaraj inflicted injuries on the neck of deceased-Nataraj with a knife. Accused No.10-
Shivanna @ Hutcha, accused No.3-Chandrashekara @
Shekar (since dead) and accused No.12-Srikantamurthy @
Prama assaulted Madhukar (since dead) with clubs. When
Narayanaswamy (since dead) was going towards land of
Prabhuswamy, accused No.5-B.N.Mahesha (since dead) and accused No.10-Shivanna assaulted Narayanaswamy (since dead) with club and chopper.
During cross-examination, PW-9 has deposed that deceased-Nataraj had suffered cut injuries on his neck. PW-
9 has deposed that accused No.6-Nanjundaswamy @
Saddam Hussain, accused No.18-Shivakumar @ Supatti had held arms of deceased-Nataraj and accused No.13-
S.Nagaraja @ Halina Nagaraj inflicted injuries on the neck of 55
deceased-Nataraj with a knife. In pre-paras we have narrated injuries found on deceased Nataraj. He had suffered multiple cut injuries on his neck. Therefore, medical evidence would support evidence of PW-9-S.Kumar. There are no reasons to disbelieve his evidence. It is established from evidence of PW.9-S.Kumar that accused No.7-
Mahadevappa @ Kunda, accused No.4-Dayananda, accused
No.1-Suresha, accused No.6-Nanjundaswamy @ Saddam
Hussain, accused No.13-S. Nagaraju @ Halina Nagaraj, accused No.12-Srinkantamurthy were members of unlawful assembly and they were armed with deadly weapons and they had participated in the incident of assault. We are excluding evidence of PW.9 against accused no.3-
Chandrashekara in view of his death during trial.
PW.10-B.M. Revanna has identified accused No.2-
Parvathammana Basappa (since dead), accused No.6-
Nanjundaswamy @ Saddam Hussain as the members of unlawful assembly. He has deposed that accused No.6-
Nanjundaswamy @ Saddam Hussain was holding a chopper on seeing the crowd of assailants, PW-10 ran away from the 56
place of incident. During cross-examination, he has reiterated that after seeing accused No.6-Nanjundaswamy @
Saddam Hussain armed with a chopper advancing towards him, he ran away from the place of incident. Therefore, evidence of PW.10-B.M.Revanna would lend corroboration to evidence of PW1 to PW4 and PW6 to PW10, regarding the presence and participation of accused No.6-Nanjundaswamy
@ Saddam Hussain.
48. The learned senior counsel for accused referring to
evidence of PW.1 to PW.10 would submit that PW.1 to PW.10
are partisan witnesses. The evidence of PW1 to PW10 on vital
aspects is inconsistent and contradictory. The injured
witnesses namely PW2 and PW3 have given evidence in
contradiction to their statements recorded under section 161
Cr.P.C. and these contradictions (Ex.D3 to Ex.D13) are
brought on record. The evidence of PW.1 to PW.10 that they
had seen the accused and their evidence attributing overt
acts to accused referred to in their evidence, cannot be
accepted.
57
On reappreciation of evidence of PW.1 to PW.10, we do not find any reasons to doubt their presence near the place of incident. The incident of assault had taken place during broad day light on a public road and on a land adjoining the public road. The accused were known to PW.1 to PW.10.
Except PW.1-B.S.Ramu, the other witnesses PW.2 to PW.10 have not made omnibus statements to implicate all the accused. They have deposed what they had seen. In the incident of assault, PW.2-B.G.Swamy and PW.3-
M.Krishnamurthy were injured. Deceased-Narayanaswamy, deceased-Nataraj and deceased-Madhukar succumbed to injuries suffered in the incident of assault. PW.1 to PW.10 had not retaliated and they had not assaulted accused.
PW.1 to PW.10 were at the receiving end. This is not a case of mutual fight. In the discussion made supra, we have held
PW-1-B.S.Ramu has made sweeping statement and his evidence requires corroboration from the evidence of other
witnesses. In the discussion made supra, we have held that
PW-2-B.G.Swamy and PW.3-Krishnamurthy were injured in
the incident of assault. We have held the injured witnessed 58
would be least disposed to implicate the accused leaving aside the real culprits. We have also noticed the evidence of
PW1 to PW10 was recorded after a period of fifteen and half
years from the date of incident. There were large number of accused and large number of witnesses. The incident of assault was a sudden shock to PW1 to PW10. In the facts and circumstances, certain contradictions and discrepancies are bound to occur during trial. We cannot expect accurate version of incident from PW1 to PW10. Their evidence has to be considered bearing in mind the background of occurrence. Therefore, the submissions of learned senior counsel for accused cannot be accepted. From the evidence of PW.4 to PW.10, we find that they had not witnessed the
whole of the incident. After seeing the crowd of assailants, they have tried to ran away from the place of incident and they were chased by some of accused. These witnesses have lost the lives of their closed associates namely
Narayanaswamy, Madhukar and Nataraj. From the evidence of PW.1 to PW.10 we find that the deceased Narayanaswamy
was their leader. Deceased-Madhukar was the son of 59
deceased Narayanaswamy. Deceased Nataraja was the close associate of Narayanaswamy. The law is well settled that close friends and relatives of deceased will not spare the real culprits. Therefore, there are no reasons to disbelieve the evidence of PW.1 to PW.10.
49. The learned senior counsel for accused would submit that accused No.9-Revanna, S/o Basappa and accused
No.23-Revanna, S/o Devappa bear the same name. PW.1 to
PW.10 have not referred to accused no.9 and accused no.23 by their names. It is not certain whether they have referred to accused no.9 or accused no.23.
50. In order to consider this submission, we have gone through the evidence of PW.3-M.Krishnamurthy who has deposed that Basappna and Revanna assaulted deceased-
Nataraj with a chopper. However, from the evidence of
PW.7-Devanna and PW.8-K.Ramesh, we do not find reference to accused No.9-Revanna, S/o Basappa or accused No.23-
Revanna, S/o Devappa either by their array or by names of their fathers. In our considered opinion, this is a serious 60
flaw committed by learned Sessions Judge while recording evidence. We also find from the evidence of aforestated
witnesses that the learned Sessions Judge while recording
evidence has recorded their names, without reference to
their array as accused and their parentage. Admittedly,
accused No.9-Revanna, S/o Basappa and accused No.23-
Revanna, S/o Devappa who are of the same name were
facing the trial. In the circumstances, the learned Sessions
Judge should have recorded evidence with reference to names of their fathers or their array as accused. Therefore, it is not possible to hold that the charges against accused
No.9-Revanna, S/o Basappa and accused No.23-Revanna,
S/o Devappa are proved beyond reasonable doubt.
51. The evidence of PW.11-D. Lokesh, PW.12-
B.S.Prasanna relates to post occurrence events. The evidence of PW-13-Kumaraswamy relates to dispute between the parties regarding entry to Siddeshwara temple. PW-14-
N.Raju was the head constable of Nanjanagudu Rural Police
Station. On 25.03.1993 he was on Bandobasth duty (law 61
and order maintenance) on Ramzan festival day. He had reached the place of incident after learning the incident.
The evidence of PW.15-Rangaswamy S/o Doddaiah,
PW.16-D.Shivaswamy, PW.17-Madaiah, PW.18-Sommanna,
PW.19-G.Shivanna, PW.20-Siddalingaiah relates to prior enmity existing between parties which has not been seriously controverted. PW.22-Shivamma is the sister of
PW.1-B.S.Ramu, who has deposed that PW-1 had gone to cricket match at Haniyamballi on 25.03.1993. PW-23-
Mahadevaiah has given evidence relating to investigation of case. PW-24-Rangaswamy had attested inquest report drawn after the inquest was held on dead body of Narayanaswamy.
He had shifted PW.2-B.G.Swamy, PW.3-M.Krishnamurthy,
Madhukar (since deceased) to Government Hospital,
Nanjangud. PW.25-Umesh has given evidence relating to the cricket match played in Haniyamballi village. The evidence of PW.25-Umesh would lend corroboration to evidence of
PW.1 to PW.10 that they had gone to Haniyamballi on
25.03.1993. After the cricket match, they were returning from Haniyamballi village to Badanavalu village. 62
52. The evidence of PW.26-M.Rangaswamy relates to recovery of a chopper on the information given by accused
No.20-Shivanandaswamy @ Swamy. From evidence of PW.1 to PW.10, we do not find evidence in proof of participation of accused No.20-Shivanandaswamy @ Swamy. The evidence of
PW.26-M.Rangaswamy that chopper was recovered pursuant to information given by accused No.20-Shivanandaswamy @
Swamy does not prove the charges against accused No.20-
Shivanandaswamy @ Swamy. The evidence of PW.27-
Dr.G.N.Vittal relates to post-mortem examination conducted on body of deceased namely deceased Narayanaswamy, deceased Madhukar and deceased Nataraj. PW.27-
Dr.G.N.Vittal has given evidence with reference to post- mortem examination reports of deceased Narayanaswamy, deceased Madhukar, deceased-Nataraj. Dr.Prakash (CW.76) had conducted postmortem examination on the dead bodies of Narayanaswamy, Madhukar and Nataraj died three years before the trial. Therefore, he was not available for examination before the trial court. The contents of post- 63
mortem examination reports have not been controverted by the defence. The evidence of PW.28-Gafoor Shariff, PW.29-
Swamy, PW.30-Zabeer Pasha relates to recovery of weapons and seizure of blood stained clothes at the instance of some of the accused. PW.28-Gafoor Shariff and PW.29-Swamy have not identified the accused. Therefore, their evidence does not help the prosecution to prove recovery of weapons.
PW-31-Rangarajan was the then Sub-inspector police of
Nanjangud Rural Police Station. On 25.03.1993, he was on bandobasth duty at Badanavalu village. The evidence of
PW.32-Putta Halagaiah, the then Tahasildar of Nanjanagud, relates to dispute between the parties relating to entry to
Siddeshwara temple and the efforts by District
Administration to resolve the dispute.
The evidence of PW.32 proves the disputes and prior enmity existing between accused and PW.1 to PW.10.
53. PW.33-Dr.T.R.Kumari was the then Assistant Director of Forensic Science Laboratory. She had examined the incriminating articles such as blood stained clothes and
weapons. PW.33 had given opinion as per Ex.25 which 64
would reveal that mud seized from the place of incident and other incriminating articles were stained with blood. The prosecution has not taken pains to furnish the report of
Serologist to prove that blood stains were of human blood and no effort was made by the prosecution to identify blood group. PW-34-R.Papanna was working as Junior Engineer at the relevant time. On 21.04.1993, he had prepared sketch of place of incident. In the discussion made supra, we have accepted evidence of prosecution witnesses, in particular
PW.1 to PW.10 to hold that injured witnesses and deceased persons were assaulted near the place of incident put forth by prosecution. PW.35-Mallesh, PW.36-Madegowda were examined to prove recovery of weapons. They have turned hostile. PW-37-M.T.Ali, was the then Sub-Inspector of Police of Nanjangud Rural Police Station. PW-37 has deposed about dispute between the parties and initiation of 107 Cr.P.C., proceedings against persons of rival factions. The evidence of PW.39 to PW.43 relates to investigation of the case. PW-
43-H.C.Kishore Chandra, the then Sub-inspector of CBI at
Mysore. He has given evidence relating to recovery of 65
weapons pursuant to voluntary statements given by accused. In the discussion made supra, we have held that
Forensic Science Laboratory Report does not indicate that stains found on the weapons were of human blood. In the circumstances, we cannot attach much importance to evidence of PW-43 relating to recovery of weapons at the instance of some of the accused.
54. The learned Senior counsel for the accused would submit that there were large number of accused as per the evidence of PW.1 to PW.10. The incident of assault resulted in death of Narayaswamy, Madhukar and Nataraj. PW-2-
B.G. Swamy, PW-3-M. Krishnamurthy were also injured in the assault. PW-1 to PW-10 are partisan witnesses. Their evidence does not inspire confidence and does not satisfy the test laid down in Masalti’s case.
The learned Senior Counsel for CBI submits that PW.1 to PW.10 have given evidence to prove presence of accused and participation of accused as members of unlawful assembly. They have given evidence in proof of overt acts 66
attributed to accused. The accused were armed with
weapons and they had assaulted PW-2, PW-3 and deceased persons namely Narayanaswamy, Madhukar and Nataraj.
PW.1 to PW.10 and deceased persons were at the receiving end. In other words, it is not a case of mutual fight. Some of the witnesses had run away from the place of incident to see the incident from a safe distance. There are no reasons to discredit their evidence.
55. On consideration of submissions of learned counsel for the parties, with reference to evidence of PW-1 to PW-10 and also bearing in mind principles laid down by the Supreme
Court in the afore cited decisions and also the decision in
Masalti’s case, we record the following findings with reference to evidence of PW1 to PW10:-
(i) The evidence of PW1 and PW9 would prove that accused No.1-Suresha was a member of unlawful assembly and he had assaulted PW-2-B.G. Swamy with a club.
Accused No.1 had surrounded PW-2 to prevent him from running away from that place.
67
(ii) The presence and participation of accused No.4-
Dayananda is proved from evidence of PWs.3, 6 to 8.
Accused No.4-Dayananda had assaulted PW-3 and deceased
Nataraj with a club. Accused No.4-Dayananda had assaulted
PW-2-B.G.Swamy and he had assaulted deceased-Madhukar
(since deceased) with chopper. This is also proved from evidence of PWs-6 to 9.
(iii) The presence of accused No.6-Nanjundaswamy @
Saddam Hussain is proved from the evidence of PWs-1, 2, 3,
4 to 10. PW-2-B.G.Swamy has deposed that accused No.6-
Nanjundaswamy @ Saddam Hussain assaulted on the lower limb of PW-2-B.G.Swamy with a chopper. PW-3-
M.Krishnamurhty has deposed about the presence of accused No.6-Nanjundaswamy @ Saddam Hussain in a mob and that accused No.6-Nanjundaswamy @ Saddam Hussain assaulted PW-2-B.G. Swamy with a chopper. Accused No.6 had assaulted on left ear of PW-3-M.Krishnamurthy with a chopper and deceased-Madhukar with a club. He chased deceased-Nataraj when he tried to ran away from the place.
Accused No.6 assaulted deceased-Nataraj with a chopper. 68
The evidence of PWs-8 and 9 would prove that accused No.6-
Nanjundaswamy @ Saddam Hussain assaulted deceased
Nataraj and Madhukar with a chopper. PW-9 has deposed that accused No.6 and accused No.18 had held hands of deceased-Nataraj when accused No.13-S.Nagaraju @ Halina
Nagaraj inflicted injuries on the neck of deceased-Nataraj
with a knife.
(iv) The presence and participation of accused No.7-
Mahadevappa @ Kunda as a member of unlawful assembly is proved from the evidence of PW-1, 2, 3, 4 to 9. PW-1-
B.S.Ramu deposed that accused No.7-Mahadevappa @
Kunda assaulted PW-2-B.G.Swamy, deceased-Madhukar and deceased-Nataraj with a chopper. PW-2-B.G.Swamy has deposed that he was assaulted by accused No.7-
Mahadevappa @ Kunda with a club. PW-4-R.Ramesh has deposed that accused No.7-Mahadevappa @ Kunda was present in the mob and assaulted PW-2. PW-7 has deposed that accused No.7 armed with a club had assaulted PW-2.
PW-8 has deposed that accused No.7 Mahadevappa assaulted PW-2 with a club. PW-9-S.Kumar has deposed 69
that accused No.7-Mahadevappa @ Kunda had surrounded deceased Madhukar and deceased Nataraj.
(v) PW-3 and PW-6 have deposed about the presence and participation of accused No.8-Shivananjappa. PW-3-
M.Krishnamurthy has deposed that accused No.8-
Shivananjappa had wrongfully restrained and assaulted deceased-Narayanaswamy with a club. Accused No.8
Shivnanjappa had restrained deceased Narayanaswamy
when he ran away from the place. PW-6-Narayanaswamy has deposed about presence of accused No.8-Shivananjappa as a member of unlawful assembly and accused no.8 rushed towards deceased-Narayanaswamy while other accused were assaulting him.
(vi) As per evidence of PW-1-B.S.Ramu, Revanna assaulted deceased-Nataraj with a club. As per evidence of
PW-6-Narayanaswamy, Revanna was present in crowd. He rushed towards deceased-Nataraj. On careful consideration of evidence of PWs-1 and PW-6, we find that there is no consistent and credible evidence in proof of presence and 70
participation of accused No.9 Revanna. In the discussion made supra, we have held that learned Sessions Judge has committed a serious flaw while recording evidence with reference to accused No.9-Revanna, S/o Basappa and accused No.23-Revanna, S/o Devappa. PW.1 and PW.6 have deposed by giving names of the accused. In the circumstances, the learned Sessions Judge should have recorded evidence either with reference to array of accused or with reference to the parentage of accused No.9.
Therefore, learned Sessions Judge should have taken proper care when recording evidence in a case involving two accused of the same name. The serious flaw committed by learned Sessions Judge would enure to the benefit of accused no.9. Therefore, we hold that prosecution has failed to prove beyond reasonable doubt the presence and participation of accused No.9-Revanna, S/o Basappa.
(vii) The prosecution has relied on evidence of PW-7 and PW-8 to prove the presence and participation of accused
No.23 Revanna. PW-7 has deposed; that Revanna assaulted
PW-2. The evidence of PW-7 is not clear whether he had 71
referred to accused No.9 Revanna or accused No.23
Revanna. PW-8 has deposed that Revanna was one of the assailants who assaulted PW-3, deceased Narayanswamy and Madhukar without clarifying whether he was referring to accused No.23 Revanna or accused No.9 Revanna. Therefore, the prosecution has failed to prove beyond reasonable doubt that accused No.23 had assaulted PW-3, deceased
Narayanswamy and Madhukar.
(viii) PW-1-B.S.Ramu has deposed that accused No.10-
Shivanna @ Hutcha stabbed deceased-Nataraj and also inflicted injuries on deceased-Madhukar with a knife. PW-9-
S.Kumar has deposed that accused No.10-Shivanna @
Hutcha assaulted Narayanaswamy with a chopper. Accused
No.10 Shivanna assaulted deceased-Madhukar with a chopper. Therefore, from the evidence of PW-1 and PW-9, presence and participation of accused No.10-Shivanna @
Hutcha and overt acts attributed to him are proved.
(ix) PW-1-B.S.Ramu and PW-4-R.Ramesh have deposed about the presence and participation of accused 72
No.11-Prabhuswamy as a member of unlawful assembly.
PW-1 has deposed that accused No.11-Prabhuswamy assaulted PW-3-M.Krishnamurthy with a club. PW-4-
R.Ramesh has deposed the presence of accused No.11-
Prabhuswamy and was in the mob of accused who were assaulting deceased Narayanswamy. Therefore, presence and participation of accused No.11-Prabhuswamy as a member of unlawful assembly and he assaulted PW-3 Krishnamurthy
with a club has been proved by the prosecution.
(x) As per the evidence of PW-7-Devanna, accused
No.12-Srikantamurthy @ Prema assaulted deceased-
Madhukar with a club. PW-9-S.Kumar had deposed that
accused No.12-Srikantamurthy @ Prema assaulted
deceased-Madhukar with a club. Therefore, there is
consistent and credible evidence to prove the presence and
participation and overt acts of accused No.12-
Srikantamurthy @ Prema.
(xi) PW.1-B.S.Ramu has deposed that accused
no.13-S.Nagaraju @ Halina Nagaraj assaulted deceased 73
Nataraj and Madhukar with a knife. In the discussion made supra, we have held that PW.1 has made sweeping statement and his evidence needs corroboration. PW.3-Krishnamurthy has deposed that accused no.13-Nagaraju @ Halina Nagaraj assaulted PW.2-B.G.Swamy with a chopper; accused no.13 assaulted Madhukar (deceased) with a knife and he had assaulted B.R.Narayanaswamy (deceased) with a club. PW.9-
S.Kumar has deposed about presence of accused no.13 as a member of unlawful assembly. PW.9 has deposed that accused no.13 held the neck of deceased Nataraj.
In the discussion made supra, we have referred to the post-mortem examination report of deceased Nataraj and we have referred to cut injuries found on the neck of deceased
Nataraj. The evidence of PW.9 finds corroboration from the contents of post-mortem examination report and medical evidence of PW.27. Therefore, the overt acts attributed to presence and participation of accused no.13-Nagaraju @
Halina Nagaraj as a member of unlawful assembly and his overt acts are proved from the evidence of PW’s.1, 3 and 9.
74
(xii) PW.4-R.Ramesh has deposed; that accused no.14-B.R.Umesha had assaulted Madhukar (deceased) with a club. PW.6-Narayanaswamy has deposed that accused no.14-B.R.Umesha had assaulted Madhukar (deceased) with a club. The evidence of PW.4 and PW.6 is sufficient to prove the presence and participation of accused no.14-
B.R.Umesha as a member of unlawful assembly and also to prove overt acts attributed to him.
(xiii) As regards accused no.15-Basavanna, we find the evidence of PW.10-Revanna, who has made an omnibus statement about presence of accused no.15 as a member of unlawful assembly. Apart from this, we do not find any evidence attributing overt acts attributed to accused no.15-
Basavanna. In view of what has been held in the aforestated decisions, evidence of solitary witness (PW.10-B.M.Revanna) that accused no.15-Basavanna was present in the unlawful assembly without there being anything more would not be sufficient to fasten vicarious criminal liability on accused no.15 by invoking Section 149 IPC. Therefore, we hold that 75
prosecution has failed to prove the charges against accused no.15-Basavanna.
(xiv) PW’s.1 to 4 have given evidence in proof of presence and participation of accused no.16-Kriyappa @
Mahadevappa. PW.1-B.S.Ramu has deposed that accused no.16 was present in the mob and he assaulted deceased
B.R.Narayanaswamy with a knife. PW.2-B.G.Swamy has deposed that he was assaulted by accused no.16 with a knife. PW.3-M.Krishnamurthy has deposed that accused no.16 assaulted PW.2 with a club and he also assaulted on the head of deceased Narayanaswamy with a club. PW.4-
R.Ramesh has given evidence regarding presence of accused no.16-Kariyappa @ Mahadevappa. The evidence of these
witnesses would prove that accused no.16-Kariyappa @
Mahadevappa was a member of unlawful assembly, he had participated in the incident of assault, the overt acts attributed to him are proved from the evidence of PW.1,
PW.2, PW.3 and PW.4.
76
(xv) PW.2-B.G.Swamy has deposed that accused no.17-Swamy @ Jalamantri was present in the mob. PW.2 has deposed that accused no.17 assaulted him. PW.7-
Devanna has deposed that accused no.17-Swamy @
Jalamantri assaulted deceased Nataraj and deceased Nataraj suffered bleeding injuries. The evidence of PW’s.2 and 7
would prove the presence and participation of accused no.17 as a member of unlawful assembly.
(xvi) PW.1-B.S.Ramu and PW.9-S.Kumar have given evidence regarding presence and participation of accused no.18-Shivakumar @ Supati in the incident of assault as a member of unlawful assembly.
PW.9-S.Kumar has deposed that accused no.18 had held the hands of deceased Nataraj and accused no.13-
Nagaraju @ Halina Nagaraj inflicted blows on the neck of
Nataraj with a knife.
In the pre-paragraphs, we have referred to the postmortem examination report of deceased Nataraj and also injuries found on his neck. Therefore, evidence of PW.9 finds 77
corroboration from medical evidence. The evidence of PW.1 and PW.9 would prove the presence and participation of accused no.18-Shivakumar @ Supati as a member of unlawful assembly. The prosecution has also proved overt acts attributed to him.
(xvii) As regards accused no.19-Rajashekara, we find that PW.1 has deposed that accused no.19 was present in the mob. PW.1-B.S.Ramu has deposed that accused no.19
was present in the mob and assaulted Nataraj and
Madhukar.
In the discussion made supra, we have held that PW.1 has made sweeping statement attributing overt acts to accused no.1 to 23 and his evidence needs corroboration from the evidence of other witnesses. Therefore, on the solitary evidence of PW.1, it is not sufficient to prove presence and participation of accused no.19-Rajashekara as a member of unlawful assembly.
(xviii) The prosecution has not adduced evidence to prove presence and participation of accused no.20- 78
Shivanandaswamy @ Swamy, accused no.21-Krupashankar and accused no.22-Shivaraudrappa. None amongst PW.1 to
PW.10 has deposed about the presence and participation of accused no.20, 21 and 22 as members of unlawful assembly.
Accused No.2-Parvathammana Basappa @ Basavanna, accused No.3-Chandrashekara @ Shekar, accused No.5-
B.N.Mahesha died during the pendency of the trial and there is no need for us to record any finding against them.
56. In the discussion made supra, we have assigned reasons for extending benefit of doubt to accused no.23. In our considered opinion, the evidence adduced by prosecution is consistent and credible and evidence proves beyond reasonable doubt, the guilt of accused namely:-
Accused no.1-Suresha, S/o Mahadevappa
Accused no.4-Dayananda, S/o Mahadevappa
Accused no.6-Nanjundaswamy @ Saddam Husain, S/o Mahadevappa,
Accused no.7-Mahadevappa @ Kunda, S/o Subbanna,
Accused no.8-Shivananjappa, S/o Nanjappa,
Accused no.10-Shivanna @ Hutcha, S/o Lingappa, 79
Accused no.11-Prabhuswamy, S/o Devappa,
Accused no.12-Srikantamurthy @ Prama, S/o Baghappa,
Accused no.13-S.Nagaraju @ Halina Nagaraj, S/o Subbappa,
Accused no.14-B.R.Umesha, S/o Ramappa,
Accused no.16-Kariyappa @ Mahadevappa, S/o Marimedai Lingappa,
Accused no.17-Swamy @ Jalamantri, S/o Barappa Lingappa &
Accused no.18-Shivakumar @ Supatti, S/o Puttaswamappa
57. The acts committed by the above accused which resulted in deaths of three persons and grievous injuries to two persons and the background of incident would lead to an inference that they committed the aforestated offences with an intention to promote hatred between two classes, their acts would squarely attract an offence punishable under
Section 153A IPC.
58. The learned Sessions judge has not followed the settled principles of law relating to appreciation of evidence in cases involving large number of accused and large number of witnesses.
80
The learned Sessions judge has ignored the settled principles of law that evidence of partisan witnesses requires close scrutiny before its acceptance. The learned
Sessions Judge has ignored the over implication in the first information lodged by PW.1, wherein PW.1 had implicated
36 named accused and 25 unnamed accused.
The learned Sessions Judge has not analysed the evidence of PW’s.1 to 10 to find out if there is consistent and credible evidence of two witnesses to hold accused no.9, 15 and 19 to 23 guilty as members of unlawful assembly or to hold that overt acts attributed against accused no.9, 15 and
19 to 23 are proved. Therefore, we are of the considered opinion that impugned judgment requires modification.
59 In the result, we pass the following:
ORDER
The appeal is accepted in part. The impugned
judgment is modified. The impugned judgment as it relates to conviction of Accused no.1-Suresha, S/o Mahadevappa,
Accused no.4-Dayananda, S/o Mahadevappa, Accused no.6- 81
Nanjundaswamy @ Saddam Husain, S/o Mahadevappa,
Accused no.7-Mahadevappa @ Kunda, S/o Subbanna,
Accused no.8-Shivananjappa, S/o Nanjappa, Accused no.10-
Shivanna @ Hutcha, S/o Lingappa, Accused no.11-
Prabhuswamy, S/o Devappa, Accused no.12-
Srikantamurthy @ Prama, S/o Baghappa, Accused no.13-
S.Nagaraju @ Halina Nagaraj, S/o Subbappa, Accused no.14-B.R.Umesha, S/o Ramappa, Accused no.16-Kariyappa
@ Mahadevappa, S/o Marimedai Lingappa, Accused no.17-
Swamy @ Jalamantri, S/o Barappa Lingappa & Accused no.18-Shivakumar @ Supatti, S/o Puttaswamappa for offences punishable under Sections 143, 148, 341, 326, 153-
A, 302 r/w 149 IPC and sentence imposed thereon is confirmed.
The impugned judgment as it relates to conviction of
Accused no.9-Revanna, S/o Basappa, Accused no.15-
Basavanna, S/o Devanna, Accused no.19-Rajashekara, S/o
Suldurappa, Accused no.20-Shivanandaswamy @ Swamy,
S/o Javanappa, Accused no.21-Krupashankar, S/o
Gurusiddappa, Accused no.22-Shivarudrappa, S/o 82
Siddappa, Accused no.23-Revanna, S/o Devappa for offences punishable under Sections 302 r/w 149 IPC, 326 r/w 149
IPC, 148 r/w 149 IPC, 341 r/w 149 IPC and 153A r/w 149
IPC is set aside.
Accused no.9-Revanna, S/o Basappa, Accused no.15-
Basavanna, S/o Devanna, Accused no.19-Rajashekara, S/o
Saldurappa, Accused no.20-Shivanandaswamy @ Swamy,
S/o Javanappa, Accused no.21-Krupashankar, S/o
Gurusiddappa, Accused no.22-Shivarudrappa, S/o
Siddappa, Accused no.23-Revanna, S/o Devappa are acquitted of offences punishable under Sections 302 r/w 149
IPC, 326 r/w 149 IPC, 148 r/w 149 IPC, 341 r/w 149 IPC and 153A r/w 149 IPC in Spl.Case No.38/2003 on the file of
VI Additional Sessions Judge & Special Court under
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 at Mysore.
The bail bonds executed by Accused no.9-Revanna,
S/o Basappa, Accused no.15-Basavanna, S/o Devanna,
Accused no.19-Rajashekara, S/o Saldurappa, Accused no.20-Shivanandaswamy @ Swamy, S/o Javanappa, 83
Accused no.21-Krupashankar, S/o Gurusiddappa, Accused no.22-Shivarudrappa, S/o Siddappa, Accused no.23-
Revanna, S/o Devappa stand cancelled. They shall be released if they are not required to be in custody in connection with any other case.
In view of acquittal of Accused no.9-Revanna, S/o
Basappa, Accused no.15-Basavanna, S/o Devanna, Accused no.19-Rajashekara, S/o Saldurappa, Accused no.20-
Shivanandaswamy @ Swamy, S/o Javanappa, Accused no.21-Krupashankar, S/o Gurusiddappa, Accused no.22-
Shivarudrappa, S/o Siddappa, Accused no.23-Revanna, S/o
Devappa, payment of compensation awarded by the trial court is modified.
Out of fine amount to be deposited by Accused no.1-
Suresha, S/o Mahadevappa, Accused no.4-Dayananda, S/o
Mahadevappa, Accused no.6-Nanjundaswamy @ Saddam
Husain, S/o Mahadevappa, Accused no.7-Mahadevappa @
Kunda, S/o Subbanna, Accused no.8-Shivananjappa, S/o
Nanjappa, Accused no.10-Shivanna @ Hutcha, S/o
Lingappa, Accused no.11-Prabhuswamy, S/o Devappa, 84
Accused no.12-Srikantamurthy @ Prama, S/o Baghappa,
Accused no.13-S.Nagaraju @ Halina Nagaraj, S/o Subbappa,
Accused no.14-B.R.Umesha, S/o Ramappa, Accused no.16-
Kariyappa @ Mahadevappa, S/o Marimedal Lingappa,
Accused no.17-Swamy @ Jalamantri, S/o Barappa Lingappa and accused no.18-Shivakumar @ Supatti, S/o
Puttaswamappa, a sum of Rs.50,000/- each shall be paid as compensation to the legal representatives of deceased
Madhukar, Nataraj, B.R.Narayanaswamy and a sum of
Rs.25,000/- shall be paid as compensation to injured PW.2-
B.G.Swamy and a sum of Rs.20,000/- shall be paid as compensation to PW.3-M.Krishnamurthy.
Sd/- JUDGE
Sd/- JUDGE
SNN/NP/PMR