SHANTHAMALLESHAPPA versus STATE OF KARNATAKA on 10 December 2018

1152 SUPREME COURT REPORTS [2018] 14 S.C.R.[2018] 14 S.C.R. 1152

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SHANTHAMALLESHAPPA

v.

STATE OF KARNATAKA

(Criminal Appeal Nos. 1583-1584 of 2018)

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DECEMBER 10, 2018

[UDAY UMESH LALIT AND R. SUBHASH REDDY, JJ.]

Penal Code, 1860 – s.436 r/w. s.34 – Prosecution case wasthat accused no. 1 along with accused no.2 to 4 threw kerosene oilon the thatched shed situated in front of the house of PW-1(sister-Cin-law of accused no.1) and after setting it on fire, all accused fledaway from the scene on motor cycles – Trial Court convicted all thefour accused u/s. 436 r/w. s.34 of IPC and imposed fine ofRs.10,000/- on accused no.1 and imposed a fine of Rs.5000/- onaccused nos.2 to 4 – High Court enhanced the sentence on accusedDno.1 to simple imprisonment for a period of six months and a fine ofRs.50,000/- and set aside the conviction of accused nos.2 to 4 – Onappeal, held: There were civil disputes pending between accusedno.1 and husband of PW-1, and earlier also they had filedcomplaints against each other – In view of such disputes andcomplaints against each other, there was a possibility of implicatingEaccused by making false complaint – There were materialcontradictions in the oral evidence adduced on behalf of theprosecution and further, except the interested testimony of PWs-1 to3, no other independent person was examined as a direct witness tothe incident – PW-1 and 2 had not stated anything about theFpresence of PW-3 and whereas, PW-3 stated that she had also comeout on hearing cries of PW-1 and 2 – Further, PWs-1 and 2 hadstated that books and clothes were burnt, contrary to the statementrecorded in the mahazar in which only partial burning of pedestalfan and the roof was stated – PW-7 admitted that nobody was residingin the shed which ran contrary to evidence of PWs-2 and 3 whereinGthey stated that PW-1, her husband and children were staying in theshed – Material contradictions were not noticed by the trial Courtas well as the High Court which resulted in perverse findings againstthe accused – Thus, impugned judgments set aside.

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Allowing the appeals, the Court

HELD : 1.1 Admittedly, the incident occurred at about 09:30p.m. on the fateful day. Unless sufficient light was there it wasnot possible to identify the accused. It was not the case of theprosecution that the witness had seen the accused persons inthe light emanated from the fire. There are material contradictionsin the evidence of PW-1 and PW-2 and the contents of the mahazar.In the deposition, PWs-1 and 2 have stated that books and clothswere burnt, contrary to the statement recorded in the mahazar inwhich only partial burning of the pedestal fan and the roof is stated.In the mahazar drafted, there is not a whisper about burning ofbooks and clothes, and the burning of fan is conspicuously absentin the evidence of witnesses. It is the case of the prosecutionthat accused after setting on fire the thatched shed, fledaway on the motor cycles but there was no identity of any of themotor cycles by registration number etc. PW-2 is alsosilent regarding the presence of PW-3 at the time of incident.[Para 11][1158-A-D]

1.2 Even according to the case of the prosecution therewere civil disputes pending between the brothers in respect offamily properties and also it is evident from the evidence onrecord that 2-3 days prior to the date of incident both the brothershave lodged complaints against each other. In view of suchdisputes and complaints registered against each other, there is apossibility of implicating accused by making a false complaint. Itis also to be noticed that PW-1, in her deposition, has not statedat all that P.W.-3 has come out of the house at the time ofoccurrence of the incident. Contrary to the evidence of PWs-1and 2 who have not spoken about the presence of PW-3, PW-3 inthe oral evidence has stated that she has also come out on hearingcries of PWs-1 and 2 on the date of incident and witnessed theincident. [Para 11][1158-C-E; 1158-H; 1159-A]

2. In the cross-examination, PW-7-Assistant Sub-Inspectorcategorically admitted that nobody was residing in the shed andthe residential house is separate but the children were using theshed for studies. Said evidence of PW-7 runs contrary to the A

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Aevidence of PWs-2 and 3 wherein they have stated that PW-1,her husband and children were staying in the shed. To provethat, PWs-1 to 3 were residing in the village and whereas theshed in question is situated in the farmhouse of PW-1’s husband,in the appeal before the High Court documentary evidence wasfiled and said documents were marked as Ex.D1 to D4. ThoughBthe said documents were received and referred to but suchdocumentary evidence is not considered at all by the High Court.[Para 11][1159-C-E]

3. There are material contradictions in the oral evidenceadduced on behalf of the prosecution and further, except theCinterested testimony of PWs-1 to 3, no other independent personis examined as a direct witness to the incident. In view of thematerial contradictions in the evidence of PWs-1 to 7 and thedocumentary evidence, filed before the appellate court, which isnot considered at all, the trial court as well as the appellate courtDhas committed serious error in arriving at the conclusion thataccused no.1 has committed the offence punishable under Section436 IPC. The material contradictions as referred to above werenot noticed by the trial court as well as the High Court whichresulted in perverse findings against the accused for recording aconviction against him and to impose the sentence. ConsideringEthe entire evidence on record, and having regard to peculiar factsof the case, if the impugned judgments are allowed to stand it willlead to a miscarriage of justice, as such, impugned judgmentsare liable to be set aside. [Para 12][1159-E-H; 1160-A]

CRIMINAL APPELLATE JURISDICTION : Criminal AppealFNos. 1583-1584 of 2018.

From the Judgment and Order dated 28.06.2017 of the High Courtof Karnataka at Bengaluru in Criminal Appeal No. 531 of 2011 C/wCriminal Appeal No. 248 of 2011.

GAnand Sanjay M. Nuli, Dharm Singh, Suraj Kaushik, Nand KumarK.B., Prawal Mishra, M/s. Nuli & Nuli, Advs. for the Appellant.

V. N. Raghupathy, Parikshit P. Angadi, Lagnesh Mishra, Advs.for the Respondent.

The Judgment of the Court was delivered by

R. SUBHASH REDDY, J.

1. Leave granted.

2. These criminal appeals have been preferred by accused no.1,in the crime registered on the file of the Chamarajanagar Rural PoliceStation, in the State of Karnataka aggrieved by the conviction recordedand sentence imposed in the judgment dated 17[th] January 2011 passed inSessions Case No.59 of 2009 by the learned District & Sessions Judge,Chamarajanagar and the judgment of the High Court in Criminal AppealNo.531 of 2011 c/w Criminal Appeal No.248 of 2011 passed on28.06.2017 by the High Court of Karnataka at Bangalore.

3. Accused nos.1 to 4 in the aforesaid crime were charged foroffence under Section 436 read with Section 34 of Indian Penal Code(IPC). The learned District & Sessions Judge, Chamarajanagar hasconvicted all the four accused for the offence under Section 436 readwith Section 34 IPC and imposed the fine of Rs.10,000/-, in default, toundergo simple imprisonment for two months on accused no.1 andimposed a fine of Rs.5,000/- on accused nos.2 to 4, in default, to undergosimple imprisonment for a period of one month.

4. Aggrieved by the conviction recorded and fine imposed, accusedhave filed Criminal Appeal No.531 of 2011 and the State of Karnatakahas preferred Criminal Appeal No.248 of 2011 seeking enhancement ofpunishment, before the High Court. The High Court, by judgment dated28[th] June 2017, allowed the appeal, filed by the accused, in part by settingaside the conviction recorded and fine imposed on accused nos.2 to 4and allowed the appeal of the State by imposing the sentence on accusedno.1 to undergo simple imprisonment for a period of six months and topay a fine of Rs.50,000/-, and in default of payment of fine, accusedno.1 has been ordered to undergo simple imprisonment for a furtherperiod of 1½ months.

5. The case of the prosecution was that accused no.1 is the elderbrother of husband of PW-1 Smt. Manjula Devi. It is alleged that therewere civil disputes among the brothers with regard to the family property.On the day of Shivratri festival on 23.02.2009 at about 08:30 p.m.,when the husband of PW-1 had gone to temple, when PW-1 along withher mother and children were in house, at about 09:30 p.m., accusedno.1 along with accused nos.2 to 4 threw kerosene oil on the thatched A

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Ashed situated in front of the house of PW-1 and set it on fire. It wasalleged in the complaint lodged before the police under Ex.P1 that all theaccused have committed the offence, as such, all were charged foroffence punishable under Section 436 read with Section 34 IPC. It wasalleged that after setting the thatched shed on fire, all the accused fledaway from the scene of occurrence on motor cycles.B

6. It is the case of the prosecution that on receiving the information,PW-7 the ASI, Chamarajanagar Rural Police Station, rushed to the spotand received the written complaint from PW-1 and on its basis registeredthe case against accused nos.1 to 4. On completion of investigation,chargesheet was filed against accused nos.1 to 4 for the offenceCpunishable under Section 436 IPC read with Section 34 IPC. The accuseddenied the charges and claimed trial.

7. To prove the charges framed against the accused, theprosecution examined seven witnesses and marked Ex.P1 to P3. Uponhearing learned Public Prosecutor and counsel for the accused, learnedDSessions Judge found all the accused guilty of the alleged crime andrecorded conviction and imposed sentence of fine.

8. Pleading that the fine imposed on the accused is not in conformitywith Section 436 of IPC, for the enhancment of punishment, State filedappeal and questioning the conviction recorded and fine imposed, accusedEnos.1 to 4 have also preferred appeal. Before the appellate court, additionaldocuments were filed along with application under Section 391, Cr.P.C.The said application was allowed and documents were marked as Ex.D1to D4. The High Court, by referring to the oral and documentary evidenceon record, has partly allowed the appeal of the accused and set aside theFconviction recorded against accused nos.2 to 4 and also allowed theappeal of State and enhanced the sentence imposed on accused no.1 tosimple imprisonment for six months and a fine of Rs.50,000/-, in defaultto undergo simple imprisonment for a further period of 1½ months.

9. In these appeals, we have heard Mr. Anand Sanjay M. Nuli,Glearned counsel appearing for the appellant-accused and Mr. V.N.Raghupathy, learned counsel appearing for respondent-State. It iscontended by learned counsel for the appellant that though there is noacceptable evidence on record, the trial court and the appellate courthave erroneously recorded conviction and imposed the sentence. It issubmitted that except the interested testimony of PWs-1 to 3 no otherHindependent eye witnesses have been examined to prove the charge. It is further submitted that though there were material contradictions in theoral evidence of PWs-1 to 5 said evidence was not properly consideredby the trial court as well as the High Court. It is submitted that evenbefore the appellate court though additional evidence is filed along withapplication under Section 391 of the Cr.P.C., such documentary evidenceis not considered by the High Court. It is contended that though theState has failed to prove the guilt of the accused beyond reasonabledoubt, the conviction is recorded and sentence is imposed on the appellant-accused no.1. On the other hand, it is the case of the State that the oralevidence of PWs-1 to 5 is consistent and same is sufficient to record theconviction against the appellant. It is submitted that in view of the propertydisputes among the brothers, accused no.1 along with accused nos.2 to4 have intentionally set fire to the dwelling house, as such, the trial courtas well as the High Court rightly recorded the conviction and imposedthe sentence. It is submitted that the Sessions Judge, even after recordingconviction of the accused under Section 436 read with Section 34 IPC,has simply imposed only fine on the accused and the same is contrary toSection 436 IPC. As such, State has preferred the appeal which isrightly allowed by the High Court by imposing the sentence of six monthsand fine of Rs.50,000/-. It is submitted that there are no grounds tointerfere with the said conviction recorded and sentence imposed.

10. Having heard learned counsel on both sides, we have perusedthe material on record and also oral evidence which is placed on recordin the paper book.

11. PW-1 Smt. Manjula Devi, who was the complainant is thesister-in-law of accused no.1. It was her case that on 23.02.2009 onShivratri festival day when her husband has gone to temple, she was inthe house along with her mother and children. The son of PW-1 Abhijithwas examined as PW-2 and mother of the accused was examined asPW-3. PW-1, in her evidence, has stated that on the date of incident, onhearing the sound of dog barking, when she went out along with her son,PW-2, they saw accused no.1 holding kerosene can and remainingaccused were with him and the accused no.1 threw kerosene oil on thethatched shed and set it on fire. PW-1, in her deposition, has not saidabout the presence of PW-3 at all. In the complaint filed before thepolice it is alleged that five persons including the accused have committedthe offence but coming to the chargesheet only accused nos.1 to 4 werechargesheeted. PW-1 stated in her complaint under Ex.P1 that she A

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1158 SUPREME COURT REPORTS [2018] 14 S.C.R.

Abecame alert on hearing the sound of motor cycles but coming to herdeposition she has stated that on hearing the dog barking she has comeout of the house and witnessed the incident. Admittedly, the incidentoccurred at about 09:30 p.m. on the fateful day. Unless sufficient lightwas there it was not possible to identify the accused. It was not thecase of the prosecution that witness had seen the accused persons inBthe light emanated from fire. There are material contradictions in theevidence of PW-1 and PW-2 and the contents of the mahazar. In thedeposition, PWs-1 and 2 have stated that books and cloths were burnt,contrary to the statement recorded in the mahazar in which only partialburning of the pedestal fan and the roof is stated. In the mahazar drafted,Cthere is not a whisper about burning of books and cloths, and the burningof fan is conspicuously absent in the evidence of witnesses. It is thecase of the prosecution that accused after setting on fire the thatchedshed, fled away on the motor cycles but there was no identity of any ofthe motor cycles by registration number etc. PW-2 is also silent regarding the presence of PW-3 at the time of incident. Even according to theDcase of the prosecution there were civil disputes pending between thebrothers in respect of family properties and also it is evident from theevidence on record that 2-3 days prior to the date of incident both thebrothers have lodged complaints against each other, basing on whichcrimes were registered being Crime Nos.36 of 2009 and 37 of 2009 onE20.02.2009 for the offences punishable under Sections 323, 324, 341,504, 506 read with 34 IPC. In view of such disputes and complaintsregistered against each other, there is a possibility of implicating accusedby making a false complaint. It is also to be noticed that PW-1, in herdeposition, has not stated at all that P.W.-3 has come out of the house atthe time of occurrence of the incident. In the cross-examination, sheFhas also admitted that accused no.1 is working in Sericulture departmentand residing in the places where he was posted. A suggestion was alsoput to her stating that accused no.1 is a Joint Director of Sericultureworking and residing at Mysore and he is not residing in the village ofBadanaguppe. PWs-2 and 3 in their depositions have stated that theyGwere staying in the outhouse. It is the case of the accused that the saidouthouse is situated in the farm house and the distance between thefarm house and Badanaguppe village is about 1 Kilometer. PW-2, in thecross-examination, has categorically admitted that the Kuteera was putup in the farmhouse and the distance between the farmhouse andBadanaguppe village is about 1 Kilometer. Contrary to the evidence ofH

PWs-1 and 2 who have not spoken about the presence of PW-3, PW-3in the oral evidence has stated that she has also come out on hearingcries of PWs-1 and 2 on the date of incident and witnessed the incident.PW-4, who claims to be resident of the village, was also examined onbehalf of the prosecution. In his evidence, he has stated that PW-1 andher husband were residing in the farm house since last 3-4 years but atthe same time in the cross-examination he has stated that he is a goodfriend of husband of PW-1 and both are Bhartiya Janata Party workers.PW-5 is the panch witness to the mahazar. In the cross-examination hehas clearly admitted that even by the time he went to the scene ofoccurrence police were preparing mahazar. A suggestion was put toPW-5 that himself and husband of PW-1 are in cordial terms. PW-7, theAssistant Sub-Inspector in his deposition has categorically stated that onreceiving the call from the Badanaguppe village that shed situated in thegarden of Manjunatha, husband of PW-1 has caught fire, he went to thespot and by that time shed was burnt. In the cross-examination, PW-7categorically admitted that nobody was residing in the shed and theresidential house is separate but the children were using the shed forstudies. Said evidence of PW-7 runs contrary to the evidence of PWs-2and 3 wherein they have stated that PW-1, her husband and childrenwere staying in the shed. To prove that, PWs-1 to 3 were residing in thevillage and whereas the shed in question is situated in the farm house ofPW-1’s husband, in the appeal before the High Court documentaryevidence was filed and said documents were marked as Ex.D1 to D4.Though the said documents were received and referred to but suchdocumentary evidence is not considered at all by the High Court.

12. There are material contradictions in the oral evidence adducedon behalf of the prosecution and further, except the interested testimonyof PWs-1 to 3, no other independent person is examined as a directwitness to the incident. In view of the material contradictions in theevidence of PWs-1 to 7 and the documentary evidence, filed before theappellate court, which is not considered at all, we are of the view thatthe trial court as well as the appellate court has committed serious errorin arriving at the conclusion that accused no.1 has committed the offencepunishable under Section 436 IPC. The material contradictions as referredto above were not noticed by the trial court as well as the High Courtwhich resulted in perverse findings against the accused for recordingconviction against him and to impose the sentence. Considering theentire evidence on record, and having regard to peculiar facts of the ABCDE

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Acase, we are of the view that if the impugned judgments are allowed tostand it will lead to miscarriage of justice, as such, impugned judgmentsare liabale to be set aside.

13. For the aforesaid reasons, we find merit in these appeals.Accordingly, these criminal appeals are allowed by setting aside theBconviction recorded and sentence imposed in the judgment dated17.01.2011 in Sessions Case No.59 of 2009 on the file of District &Sessions Judge, Chamarajanagar and the judgment of the High Courtdated 28.06.2017 in Criminal Appeal Nos.531 of 2011 and 248 of 2011.Resultantly, the appellant-accused is acquitted of the charge and the bailbonds, if any, furnished by the appellant-accused stand discharged. TheCappellant-accused is entitled for refund of the fine amount deposited byhim.

Ankit Gyan

Appeals allowed.

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