RAMABORA @ RAMABORAIAH & ANR versus STATE OF KARNATAKA on 10 August 2022

1. Aggrieved by the conviction for an offence under Section 302IPC and the sentence of imprisonment for life handed over to them byBthe High Court of Karnataka, reversing the order of acquittal passed bythe Sessions Court, accused Nos.1 and 2 have come up with the aboveappeal.

2. We have heard the learned counsel for the appellants and thelearned standing counsel for the State of Karnataka.

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3. The appellants herein were prosecuted along with 20 otherpersons, before the II Additional District and Sessions Judge, Bangalore,for alleged offences under Sections 143, 144, 148, 147, 448 and 302 readwith Section 149 IPC. By a judgment dated 8.8.2001, all the accusedexcept those against whom the prosecution abated, were acquitted bythe Sessions Court.D

4. However on appeals filed by the State of Karnataka, a DivisionBench of the High Court of Karnataka set aside the acquittal of theappellants herein (A-1 and A-2) and held them guilty of the offencepunishable under Section 302 IPC and sentenced them to imprisonmentEfor life. But the acquittal of all the other accused was confirmed by theHigh Court.

5. Aggrieved by the said judgment of reversal, accused Nos.1and 2 have come up with the above appeal.

6. The case of the prosecution was that on 30.11.1997 at about 11Fp.m., all the 22 accused formed themselves into an unlawful assemblyand that armed with deadly weapons, they committed trespass by enteringinto the house of the deceased Siddaraju and committed the murder ofthe deceased in furtherance of a common object.

7. The motive for the murder according to the prosecution, wasGthat when A-1 was passing through the house of the deceased, he heardthe deceased hurling abuses in a foul and filthy language. Though thevictim was purportedly abusing his own father, A-1 mistook as thoughhe was being abused. Therefore, he picked up a quarrel with the deceasedand thereafter went to the village, secured the other accused and wentto the house of Siddaraju, broke open the door, pulled him out to theHstreet and hacked him to death.

8. The case of the prosecution rested on the ocular testimony ofPW-1 and PW-4 who were the mother and maternal uncle of thedeceased. Though the father and sister of the deceased were alsoexamined as PW-2 and PW-3, they were not treated as eye-witnesseson the ground that they had not seen the incidence.

9. Four Panch witnesses examined as PWs 5, 6, 7 and 8 did notsupport the case of the prosecution and were declared as hostile. PW-9,the mahazar witness also turned hostile. PW-10 was the doctor whoconducted the post-mortem on the body of the deceased.

10. At this stage, it is relevant to note that PW-1, mother of thedeceased, gave a complaint at 00.45 hrs on 1.12.1997, on the basis ofwhich Exhibit P-8 FIR was registered. Thereafter, one Nagamma, wifeof the deceased is said to have given another complaint which was markedas Exhibit P-9. On the basis of the said complaint, a second FIR wasregistered for more offences, including offences under the ScheduledCastes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Butfor reasons not known, this Nagamma was not examined as a witness,though cited as a witness in the charge sheet.

11. On the basis of the oral and documentary evidence, the SessionsCourt recorded certain findings with regard to the appellants herein(A-1 & A-2) which are reproduced in the words of the Sessions Courtitself, as follows:- “1. PW1 speaks about the presence of only six persons and theyare A1, A2, A3, A11, A16 and A18. Whereas A14 speaks aboutthe presence of only 7 persons viz.., A1, 2, 8, 11, 16 and 12. In thisway PW1 speaks about the presence of 7 accused persons. Theaccused stated by these two witnesses are not exactly the same.Both the witnesses have spoken about only the presence of A1,A2, A11 and A16 and they had not spoken about the presence ofothers.

2. The presence stated by PW1 and PW4 put together, are A1 toA3, A8, A11, A12, A16, A18 and A21. Hence, the presence of allother accused persons is not even stated by any of the witnessesand because of it there is no evidence against them.

3. The very fact that PW1 is silent about the presence of A8, A12and A21 whose presence is stated by PW4, goes to show thatthey were not present. Similarly the silence of PW4 about the A

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presence of A3 and A18 whose presence is spoken by PW1 goesto show that A3 and A18 could not have been present. Hence, itclearly goes to show that there is false implication.

4. The very fact that the eye witnesses do not speak about thepresence of most of the accused persons goes to show that theyhave been falsely implicated. Hence, from the beginning theevidence of the prosecution is doubtful.

5. When we examined the evidence relating to what weaponswere used, it clearly goes to show that it is only an exaggerationand none of the witnesses are speaking the truth and even theirpresence becomes doubtful.

6. Accordingly to the complaint, accused-1 assaulted deceasedby ‘bettukodali’ on his head. A12 Ashwatha assaulted the deceasedby club all over the body. All other accused persons assaulted himwith stones and bricks. Hence, according to the complaint onlyone ‘bettukodali’ (axe), one club were used in addition to somestones and bricks. But in evidence MO-1 To MO-6 clubs andMO-7 to MO-9 chopper and sickle and axe are marked. Hencethe number of weapons stated in the complaint is different whilecompared to the weapons produced and marked in evidence.

7. PW1 goes to the extent of saying that the accused had brought‘machu’, sickle, axe, knife and clubs. In this way the weaponsstated by PW1 are different when compared to the weapons statedin the complaint. PW1 is the complainant and because of it, shecould not have stated such weapons which were not even statedin the complaint. This goes to show that the evidence of PW1 isfull of exaggeration and that is not acceptable.

8. In the complaint the overt act done by accused-1 is that heassaulted with bettukodali on the head of the deceased. But PW1states that A-1 assaulted with axe on the ear of the deceased andit was cut off. PW4 has stated that accused-1 assaulted by sickle.Hence, about the overt act done by accused-1, there iscontradiction.

9. When we see that overt act done by accused-2 Thimma, thereis contradicting version. In the complaint it is only stated thataccused-2 broke open the lock of that house where Siddaraju was kept and then it is the accused-1 who assaulted him on hishead by axe and caused his death. But in evidence PW1 statesthat accused-2 had brought MO9 axe and assaulted him. He gaveanother version by stating that MO7 chopper was in the hand ofaccused-2 Thimma. PW4 states that accused-2 assaulted withaxe. In this way about the overt act done by accused-2, there aredifferent version and because of it their evidence is not acceptable.

10. PW1 states accused assaulted her also and she sustainedbleeding injury on her head and she was assaulted with club byone Ashwatha and she took treatment of Government hospitalChannapatna. In my opinion, this is only an exaggeration because,it is not stated in the complaint about assaulting her and there is nomedical evidence to show that she was treated at Channapatanahospital.

11. The fact that the eye witnesses PW1 and PW4, does notspeak about the presence of many of the accused persons asdiscussed above corroborates the inference that some of theaccused persons are falsely implicated. Hence, all is not well inthe prosecution case and it raises substantial doubt and the accusedwill be entitled to benefit of doubt.”

12. On the basis of the above findings, the Sessions Court acquittedall the 22 accused except those against whom the charges abated.Therefore, the State filed two appeals, one of which was against 17accused and the other against 2 accused. The appeal in Criminal AppealNo.1591 of 2001 was against the acquittal of A-7 and A-8 and the otherappeal, Criminal Appeal No.1590 of 2001 was against the acquittal ofA-1 to A-3, A-5, A-6, A-9 to A-16, A-18, A-19, A-21 and A-22.

13. The High Court dismissed the State’s appeal Criminal AppealNo.1591 of 2001, thereby confirming the acquittal of A-7 and A-8. Inthe other appeal, namely, Criminal Appeal No.1590 of 2001, the HighCourt confirmed the acquittal of all the other accused except A-1 andA-2. In other words, this appeal was partly allowed and A-1 and A-2were convicted only for the offences under Section 302 IPC.

14. As a matter of fact, the charges under Sections 143, 144, 148,147 and 448 read with Section 149 were all gone even against A-1 andA-2 who are the appellants herein. A-1 and A-2 have been convicted bythe High Court only for the offence under Section 302 IPC.

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A15. To come to the aforesaid conclusions, the High Court pointedout (i) the inconsistencies in the evidence of PW-1 and PW-4, insofar asthe role played by all the accused other than A-1 and A-2; (ii) that thetrial Court committed an error in acquitting all the 22 persons merelybecause PW-1 did not name all of them; (iii) that the principle “falsus inuno falsus in ominbus”, cannot be invoked in cases of this nature; andB(iv) that there was consistency in the evidence of PW-1 and PW-4 withregard to the participation of A1 and A2 in the commission of the offence.

16. The crucial portion of the findings of the High Court for holdingthe appellants guilty of the offence under Section 302 IPC reads asfollows:-C

“We find consistency in the evidence of PW-1 and PW-4 withregard to the participation of A1 and A2 in the commission of theoffence. Both have deposed and have stated A1 and A2 brokeopen the door of the house, A1 dragged Siddaraju from the house,hacked him with a sickle on the face and thereafter A2 with axeDassaulted on the head of the deceased. The same also finds aplace in the complaint. As such, this part of evidence of PW-1and PW-4 is reliable and Trial Court erroneously acquitted A1and A2 when there was sufficient material on record to hold themguilty.”

17. But the above findings of the High Court appear to be illogical.EThe primary charge of the prosecution was that all the 22 accused,formed themselves into an unlawful assembly with the common objectof committing the murder of the deceased and that all of them beingmembers of the unlawful assembly were armed with deadly weaponslike clubs, bettu kudli, kodli etc. and that they committed the offence ofFrioting, trespass and murder. All these charges have now been held notproved against all the accused including A-1 and A-2 and the only offenceheld proved against A-1 and A-2 is the one under Section 302 IPC. Wedo not know how, in the facts and circumstances of the case, theconviction of only 2 out of the 22 accused can be sustained and that tooonly for the offence under Section 302 when the allegation of unlawfulGassembly, common object, trespass, rioting etc. are held not provedagainst all of them. The State has not come up with any appeal againstthe acquittal of all the other accused.

18. Moreover, there was also no explanation as to why there weretwo First Information Reports. According to PW-13, the Sub-InspectorH

of Police, he received the oral complaint of PW-1 at 00.45 hrs. on01.12.1997 and he claims to have recorded the complaint, registered thesame as Crime No.182/1997 and sent the same to the Court. This FIRwas marked as Exhibit P-8.

19. According to the same witness PW-13, the wife of thedeceased by name Nagamma gave a written complaint at the hospital.It was marked as Exhibit P-9. PW-13 claimed that thereafter he registereda second FIR by including the offences under the Scheduled Castes andScheduled Tribes (Prevention of Atrocities) Act, 1989. This FIR wasmarked as Exhibit P-7. PW-13 further claimed that the furtherinvestigation of the second FIR was entrusted to the CPI, as the samerelated to serious offences.

20. The CPI was examined as PW-14. In his cross-examinationhe did not make a whisper as to what happened to the second FIR. Allthat he stated was that he took the statement of Nagamma (wife of thedeceased who gave the second complaint) only at the time of inquestproceedings from 7:00 a.m. to 10 a.m.

21. As stated earlier, Nagamma was cited as one of the witnessesin the Charge-Sheet, but she was not examined as a witness during trial.The High Court has recorded that her whereabouts were not knownand that, therefore, she could not be examined. Such an explanation isnot found in the testimony of PW-14

22. It is true that the principle “falsus in uno falsus in omnibus”may not have unadulterated application to criminal jurisprudence. TheCourts have always preferred to do what Hamsa, the mythological Swan,is believed to do, namely, to separate milk and water from a mixture ofthe two[1]. In Arvind Kumar @ Nemichand & Ors. vs. State ofRajasthan[2], M.M. Sundresh J. speaking for the bench crystallized thisprinciple as follows:

“49. The principle that when a witness deposes falsehood, theevidence in its entirety has to be eschewed may not have strictapplication to the criminal jurisprudence in our country. Theprinciple governing sifting the chaff from the grain has to beapplied. However, when the evidence is inseparable and such anattempt would either be impossible or would make the evidence 1 The idiom “sifting the chaff from the grain” has become very old and worn out andrequires replacement

2 2021 SCC Online SC 1099

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Aunacceptable, the natural consequence would be one of avoidance.The said principle has not assumed the status of law but continuesonly as a rule of caution. One has to see the nature of discrepancyin a given case. When the discrepancies are very material shakingthe very credibility of the witness leading to a conclusion in themind of the court that is neither possible to separate it nor to relyBupon, it is for the said court to either accept or reject.”23. Therefore, the High Court was right on first principles that theevidence of PW-1 and PW-4 cannot be rejected by invoking the theoryof falsus in uno falsus in omnibus.

24. But when there are glaring contradictions between the testimonyCof even these two witnesses on the type of material object used andeven on the role of A-2, the very foundation of the case of the prosecutionstood shaken.

25. As a matter of fact, the Trial Court took note of the absenceof evidence relating to the injuries suffered by PW-1. Nothing was statedDby PW-1 in the FIR, about the injuries on her body, but she spoke aboutit in her evidence. Even the same was not corroborated by medicalevidence. This is why the Trial Court disbelieved the evidence of PW-1and PW-4.

26. To overturn such a verdict of acquittal, handed over by theESessions Court after disbelieving PW-1 and PW-4, the High Court shouldhave come up with more stronger and cogent reasons than what hasbeen recorded. The law on the scope of Section 378 of the Cr.P.C., istoo well settled. Very recently this Court traced the law in Ravi Sharmavs. State (Government of NCT of Delhi) & Another[3]. The impugnedjudgment of the High Court is not in accordance with the law on theFpoint.

27. In such circumstances, we are of the considered view thatthe conviction of the appellants herein by the High Court cannot besustained. Therefore, the appeal is allowed and the impugned judgmentof the High Court insofar as it relates to the conviction of appellants isGset aside. The appellants shall be released forthwith, unless they aresuffering incarceration in connection with any other case. No costs.

Ankit Gyan(Assisted by : Aarsh Choudhary, LCRA)H3 2022 SCC Online SC 859

Appeal allowed.