RAJENDRA @ RAJAPPA AND ORS. versus STATE OF KARNATAKA on 26 March 2021

RAJENDRA @ RAJAPPA AND ORS.

v.

STATE OF KARNATAKA

(Criminal Appeal No. 1438 of 2011)

MARCH 26, 2021

[SANJAY KISHAN KAUL AND R. SUBHASH REDDY, JJ.]

Penal Code, 1860 – s. 302 r/w 149 – Murder pursuant toarmed assault – Deceased was assaulted with axe, stick, pickaxeand stone when he was coming back from work alongwith his wife(PW1) and elder brother (PW2) – Six accused – A-1 died – Trialcourt acquitted A-2 to A-6 – High Court reversed acquittal of A-2to A-5 and convicted them u/s.302 r/w s.149, however, confirmedacquittal of A-6 – On appeal by A-2 to A-5 (appellants), held: Trialcourt erred in disbelieving the evidence of PWs-1 to 3 only on theground that they were relatives of the deceased, forgetting that PW-1 was daughter of A-1 and PW-3 was A-1’s wife – No reason forPW-3 to depose against her own husband making such seriousallegations – Depositions of PW-1 to PW-3 when consideredalongwith the documentary evidence on record and medical evidenceof PWs-10 and 14, made it clear that their evidence was natural,trustworthy and acceptable – Injuries found in the post-mortemreport were attributable to overt acts of A-2 to 5, as stated in thecomplaint – Contradictory portion of the statement of PW-14 notsignificant to discard the total evidence on record – As the viewtaken by the trial court was not at all a possible view and the findingsran contrary to the evidence on record, the High Court rightlyreversed the judgment of the trial court by convicting A-2 to A-5 –From the evidence on record, it is clear that the assault wasintentional which resulted in the death of deceased, and A-2 to A-5had a common object, as such the High Court rightly convictedthem u/s.302/149, IPC etc.

Code of Criminal Procedure, 1973 – s.378 – Scope of –Appeal against acquittal recorded by trial court – Held: Unless theview taken by the trial court is not a possible view, normally theHigh Court should not interfere with the acquittal recorded by thetrial court.

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AEvidence – Witness – Credibility of – Held: Only contradictionsin material particulars and not minor contradictions can be a groundto discredit the testimony of the witnesses.

Dismissing the appeal, the Court

HELD:1. In various authoritative pronouncements, thisBCourt has circumscribed the scope of appeal under Section 378CrPC, in cases where appeal is preferred against acquittalrecorded by the trial court. Further, it is a settled propositionthat unless the view taken by the trial court is not a possibleview, normally the High Court should not interfere with theCacquittal recorded by the trial court. There cannot be any straight-jacket formula to apply readily for the cases in appeals arisingout of acquittal recorded by the trial court. Whether the viewtaken by the trial court is a possible view or not; whether thefindings recorded by the trial court are in conformity with theevidence or not; are the matters which depend upon facts andDcircumstances of each case and the evidence on record. By re-appreciating evidence on record if appellate court comes toconclusion that findings recorded by the trial court are erroneousand contrary to law, it is always open for the appellate court, byrecording good and compelling reasons for interference andEoverturn the judgment of acquittal by converting the same tothat of conviction. [Para 10][303-G-H; 304-A-C]

2. In this case, the deceased; PWs-1 to 3; and accused wereclosely related. The trial court disbelieved the evidence of PWs-1 to 3 only on the ground that they are relatives of the deceased,Fforgetting the fact that PW-1 is the daughter of A-1 and PW-3 isno other than the wife of A-1. In Ex.P-1 itself PW-1 has statedthat there was dispute between her deceased husband and hiselder brother (PW-2) on one side and her father (A-1) and hisbrothers on other side in respect of sharing of tapping of toddytrees. Further, PW-1 who was accompanying the deceased at theGtime of the incident, has stated in her evidence that at about 06:00a.m. she, her deceased husband and also PW-2, together went toattend coolie work and when they were returning to their house,at about 11:30 a.m. assault was made near the hostel. It is quite H

natural that in rural areas, going to work in early hours and comingback to their home around 11-11:30 a.m. to have their food. Shehas also clearly stated in her deposition that A-1 (who is nowdead) hit with axe on the left cheek of the deceased, A-3 hit thedeceased with bedaga (a sharp-edged agricultural instrument)on his head, A-4 assaulted with club on the head of the deceased,and A-5 also assaulted the deceased with axe on his head. If oneexamines the testimony of PW-1 closely, it is clear that it isconsistent with her allegations in her complaint – Ex.P-1.[Para 11][304-D-H; 305-A-B]

3. Ex.P-6 is the post-mortem examination report in whichthe external injuries on the dead body of the deceased werementioned. If the complaint made by PW-1 and her testimony areconsidered along with the injuries found in Ex.P-6 – post-mortemreport, it makes it clear that the said injuries referred in the post-mortem report are attributable to overt acts of the accusednos. 2 to 5, as stated in the complaint. PW-1 has not made anyimprovements, omission or contradiction, so far as it relates todetails of occurrence of the incident in the manner alleged in thecomplaint – Ex.P-1 and as deposed by her in the examination-in-chief. As PW-1 is a rustic villager, discrepancies in timelines, asto the time when she was examined by PW-14 (doctor) for thesaid injuries cannot go to the root of the prosecution case andfurther it is to be noted that she sustained injury on the said dateand she was examined by PW-14. The deposition of PW-1 appearsto be truthful and trustworthy. PW-2, the elder brother of thedeceased has also stated in his evidence narrating the incidentin the same lines as that of PW-1. PW-2 is also an injured witnessin the incident and PW-10 (doctor) examined him for the saidinjury and Ex.P-4 is the wound certificate pertaining to injuriessuffered by PW-2, issued by PW-10 – Senior Specialist in DistrictHospital. The contents of the wound certificate and oral evidenceof PW-2 also establish that the injured PW-2 was brought to thehospital by his wife with a history of assault on him on the sameday by A-1 and others. PW-3 is none other than the wife of A-1who died during the pendency of trial and mother of PW-1. Thereis absolutely no reason for PW-3 to depose against her own AB

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Ahusband making such serious allegations. If the depositions ofPW-1 to PW-3 are considered along with the documentaryevidence on record and medical evidence of PWs-10 and 14, it iscrystal clear that their evidence is natural, trustworthy andacceptable. [Para 11][305-A-G]

B4. Though the evidence of PWs-1 to 3 is consistent,reliable and trustworthy, the trial court, only by referring to minorcontradictions, disbelieved the whole of their testimony. Thefindings, as recorded by the trial court in support of the acquittal,are contrary to evidence on record and the testimony of PWs-1,2 and 3. Thus such findings, being perverse and erroneous, it isCalways open for the appellate court to reverse such findings onre-appreciation of evidence on record. [Para 11][306-D-F]

5. As regards the contradictory portion of the statement ofPW-14 with reference to entries under Ex.P-6 wherein it wasrecorded that undigested food was found in the stomach, it is toDbe noticed that in Ex.P-6 itself reveals that the intestine of thedeceased was full of faecal matter, therefore, death must haveoccurred between 3 to 12 hours prior to the postmortemexamination, which supports the prosecution case. In that viewof the matter, the contradictory portion of the statement of PW-E14 needs to be discarded and not significant to discard totalevidence on record. [Para 11][306-F-G]

6. Having regard to the evidence on record, as the viewtaken by the trial court was not at all a possible view and thefindings run contrary to the evidence on record, the High CourtFhas rightly reversed the judgment of the trial court by convictingthe appellants (A-2 to A-5). Further contention of the appellantsthat in any case the conviction under Section 302, IPC be modifiedto that of conviction under Section 304-II, IPC, has no merit.From the evidence on record, it is clear that the assault wasintentional which resulted in the death of the deceased and allGaccused – A-2 to A-5 – had a common object, as such the HighCourt has rightly convicted the accused for offence punishableunder Section 302/149, IPC etc. [Para 11][306-H; 307-A-C]

Narayan Chetanram Chaudhary & Anr. v. State ofMaharashtra (2000) 8 SCC 457 : [2000] 3 Suppl. SCR 104 – relied on A

Shivaji Sahabrao Bobade & Anr. v. State ofMaharashtra (1973) 2 SCC 793 : [1974] 1 SCR 489;Kanhaiya Lal & Ors. etc. v. State of Rajasthanetc.(2013) 5 SCC 655 : [2013] 6 SCR 361; V.N.Ratheesh v. State of Kerala (2006) 10 SCC 617 : [2006]3 Suppl. SCR 314; and Moti & Ors. v. State of U.P.(2003) 9 SCC 444– referred to B

Case Law Reference

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1438 Of 2011

From the Judgment and Order dated 22.02.2011 of the High Courtof Karnataka Circuit Bench at Gulbarga in Criminal Appeal No. 1812 of2005

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Ms. Kiran Suri, Sr. Adv., S.J. Amith, Ms. Aishwarya Kumar,Krishna Kumar, Dr. (Mrs. ) Vipin Gupta, Advs. for the Appellants.

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Shubhranshu Padhi, Ashish Yadav, Rakshit Jain, Vishal Banshal,Advs. for the Respondent.

The Judgment of the Court was delivered by

R. SUBHASH REDDY, J.

1. This criminal appeal is filed by the accused nos.2 to 5 in SessionsCase No.162 of 2003 on the file of Fast Track Court-IV, Gulbarga,aggrieved by the judgment and order of conviction and sentence dated22.02.2011 in Criminal Appeal No.1812 of 2005 passed by the HighCourt of Karnataka (Circuit Bench at Gulbarga).

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A2. Sessions Case No.162 of 2003 is a case chargesheeted byShahbad Police Station in the State of Karnataka against the appellants-accused under Sections 143, 147, 148, 324, 326, 307, 302 read with 149of Indian Penal Code (IPC). For the aforesaid offences, they were triedby the Fast Track Court-IV at Gulbarga and by judgment dated20.06.2005, the appellants/accused nos.2 to 5 and accused no.6 wereBacquitted for the charges framed against them. As the accused no.1died during the pendency of the proceedings, case was abated againsthim.

3. Aggrieved by the acquittal of the appellants, the respondent-State has preferred Criminal Appeal No.1812 of 2005 before the HighCCourt of Karnataka. The High Court, by the impugned judgment andorder dated 22.02.2011, has allowed the appeal partly and convicted theappellants/accused nos.2 to 5 for various offences they were chargedwith, and confirmed the acquittal of the accused no.6 (Smt. Shantabai).All the appellants were sentenced for various offences as under :

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(i) R.I. for a period of three months and to pay fine ofRs.3,000/- each. In default, to undergo S.I. for a periodof one month for the offence under Section 143 IPC.

(ii) R.I. for a period of one year and to pay fine of Rs.4,000/- each. In default, to undergo S.I. for a period of threeEmonths for the offence under Section 148 r/w Sec.149of IPC.

(iii) R.I. for a period of one year and also to pay fine ofRs.5,000/- each. In default, to undergo S.I. for a periodof four months for the offence under Section 324 r/wFSec.149 IPC.

(iv) R.I. for a period of two years and to pay fine ofRs.6,000/- each. In default, to undergo S.I. for a periodof five months for the offence under Section 326 r/wSec.149 of IPC.

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(v) Life imprisonment and also to pay fine of Rs.8,000/-each. In default, to undergo S.I. for a period of oneyear for the offence under Section 302 IPC r/w Sec.149of IPC.

4. Stated in brief, the necessary facts and the case of theHprosecution for the disposal of this appeal are as under :

•The complainant (PW-1) Sheshamma, is the wife of thedeceased. That on 02.02.2003 the complainant and herhusband went to coolie work in the morning and when theywere returning along with firewood bundle and PW-2 wasfollowing them, at about 11:30 a.m. when the complainantand her husband came near the Government Hostel, all theaccused A-1 to A-6 armed with axe, stick, pickaxe andstone, attacked the deceased and thereby inflicted fatalwounds on his person by assaulting him with weapons whichthey were carrying. It is further alleged that the complainantrescued her husband, went behind the hostel, the accusedfollowed them and A-1 assaulted the deceased with axe onleft cheek, A-2 assaulted with bedaga, A-3 assaulted withstick, A-4 assaulted with club, A-5 assaulted with axe. A-1is the father of the complainant; A-2 and A-4 are uncles ofthe complainant; A-3 and A-5 are sons of A-1’s sister andA-6 is one of the sisters of A-1. It is alleged in the complaintthat all the accused have attacked the deceased and startedabusing him saying that, inspite of telling not to pass fromthe front of their houses and to show their faces, they havecome towards the side of the accused. Further, it is statedin the complaint that when she and her husband tried toescape and ran away from the back side of the hostel, allthe accused followed them and attacked them. Further, it isstated that as her husband sustained grievous injuries hedied on the spot and said incident was witnessed by hermother Sayamma and her sister Rathnamma, Mahesh andtheir villagers Haji, Hussain have also seen. In her complaint,she prayed to take action against the accused.

•The police, after investigation of the case and aftercompletion thereof, filed chargesheet against the accusedunder various sections, as stated already.

•After committal of the case to the Fast Track Court-IV,Gulbarga, as accused no.1 was reported dead, case againsthim was abated. After hearing the accused, the charge wasframed against the appellants under Sections 143, 147, 148,324, 326, 302, 307 read with 149, IPC. The accused pleadednot guilty and claimed trial.

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A•The prosecution, to prove its case examined 22 witnesses,i.e., PW-1 to PW-22 and got marked 15 documents asexhibits, i.e. P-1 to P-15 and material objects - MO-1 toMO-13 were marked. No witness was examined in defence,but 10 documents – Ex.D-1 to D-10 were marked.B5. After appreciating the ocular and documentary evidence onrecord, the trial court has acquitted all the accused from the chargeswith the following observations :

•The deceased died due to brain hemorrhage on account ofmultiple head injuries suffered by him; C

•As per the evidence, deceased died 6 to 8 hours earlier tothe postmortem examination; •PW-1 to PW-5 being close relatives of the deceased, theywere inimical with each other before the incident, therefore,their evidence has to be considered with great care andDcaution; •The name of PW-6, the only independent witness, is notmentioned in the complaint; •It is not clear, at what time injuries were sustained or theincident took place;E

•The nature of injuries and details of the same are notconsistent; •There are different versions in the oral and documentaryevidence and they do not tally with each other; F

•Key witnesses to the incident were not examined; •The weapons used for the offence do not find a mention inthe complaint itself; •Discrepancies in the statement of PW-1 and as she has notGdisclosed about the earlier Sessions case which was goingon against her husband, PW-2 and their father.

6. On appeal by the State, the High Court, while confirming theconviction of the accused no.6, has convicted accused nos.2 to 5 by theimpugned judgment and order. The High Court, in the impugned judgment,has mainly held that PW-1 is a truthful witness and her testimony is quiteH

consistent and supports the case of the prosecution. The High Courtbelieved the oral evidence of PW-1 and PW-2 who are injured witnesses.High Court noted that PW-1 is no other than the daughter of accusedno.1 and PW-3 – Smt. Sayamma – is none other than the wife of accusedno.1 – Devendrappa. They have deposed in clear terms about theoccurrence on the day of incident. Having regard to the consistentevidence of PWs-1 to 3 as to the occurrence of the incident, which is inthe manner alleged in the complaint – Ex.P1, High Court found that thetrial court has committed serious error in disbelieving their evidence, forthe charges levelled against the accused. The High Court also consideredthe testimony of Medical Officer PW-14 and held that the occurrenceof incident of assault on the deceased by the accused resulting in spotdeath of the deceased, is proved beyond reasonable doubt. Further, byobserving that in view of such evidence, motive for the commission ofmurder of the deceased by accused assumes little importance. However,referring to the evidence of PWs-1 to 3 it is held that even the motive isestablished as much as there was a dispute between the parties in respectof tapping of toddy trees, therefore, accused developed ill-will againstthe deceased. By recording a finding that the evidence on record wasnot properly appreciated by the trial court, the High Court has found thatthe prosecution has proved the case against the accused nos.2 to 5 andthey are guilty of committing murder of the deceased and causing injuriesto PWs-1 and 2. It is further held that all the accused – A-2 to A-5 –have had shared common object of causing the death of the deceased,as such all are liable to be convicted for the offences alleged againstthem.

7. In this appeal, Ms. Kiran Suri, learned senior counsel appearingfor the appellants-accused has submitted that the trial court, byconsidering the entire evidence on record and by noticing the materialdiscrepancies in the evidence on record, has rightly held that theprosecution has not proved the guilt of the accused beyond reasonabledoubt. It is submitted by learned counsel that the view taken by the trialcourt was a possible view. In that view of the matter, the High Courtcommitted error in reversing the well reasoned judgment of the trialcourt. The learned counsel has placed reliance on a judgment of thisCourt in the case of Shivaji Sahabrao Bobade & Anr.v. State ofMaharashtra[1] wherein this Court has considered the scope of appeal AB

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Aagainst acquittal under Code of Criminal Procedure 1898. Reference isalso made to the judgment of this Court in the case of Kanhaiya Lal &Ors. etc. v. State of Rajasthan etc.[2] wherein this Court has consideredscope of appeal under Section 378 of Code of Criminal Procedure, 1973and has held that unless there are substantial and compelling reasons,judgment of acquittal cannot be overturned. Further, reference is alsoBmade to a judgment of this Court in the case of V. N. Ratheesh v. Stateof Kerala[3] wherein this Court has held that the order of acquittal shallnot be interfered with because the presumption of innocence of theaccused is further strengthened by acquittal. By further referring to themedical evidence and ocular evidence on record, it is submitted by learnedCcounsel that evidence of PW-14 (Medical Officer) and the contents ofEx.P-6, i.e., postmortem report run contrary to the deposition of PW-1and that in view of such material contradictions, the High Court oughtnot have interfered with the judgment of the trial court. Further, it issubmitted, having regard to the evidence of PW-14 who conducted theautopsy on the dead body of the deceased and the Ex.P-6 – postmortemDexamination report which revealed that stomach contained undigestedrice like food particles, as such it was held that deceased might havedied about 18 hours prior to his postmortem examination, clearly falsifiesthe case of the prosecution that the deceased was assaulted by theaccused at about 11:30 a.m. on 02.02.2003. To buttress the saidEsubmission, the learned counsel has relied on a judgment of this Court inthe case of Moti & Ors. v. State of U.P.[4]. Lastly, it is submitted that inany event it is not a case for conviction under Section 302 IPC as therewas no intention to kill the deceased, and if her submissions are notaccepted on merits of the matter, she made a request to modify theconviction to one under Section 304-II, IPC.F

8. On the other hand, learned counsel appearing for the State ofKarnataka, by taking us to the various findings recorded by the trialcourt as well as the High Court, has submitted that the findings in supportof acquittal recorded by the trial court are perverse and erroneous. It is always open for the appellate court to reappreciate the evidence andGreverse such findings. It is contended by learned counsel, though PWs-1 to 3 are rustic villagers and when deposing after a long lapse of timefrom the date of incident, the minor discrepancies will occur and same is2 (2013) 5 SCC 6553 (2006) 10 SCC 617H4 (2003) 9 SCC 444

no ground to discard their evidence. It is submitted that the evidence ofPWs-1 to 3 is trustworthy and natural. Inspite of the same, bymisconstruing the evidence, the trial court discarded their testimony onlyon the ground that all are interested witnesses as they are related. It issubmitted that even the accused was related to PWs-1 to 3 and merelybecause they are related, same is no ground to discard their evidence.By referring to the various findings recorded by the High Court, learnedcounsel has submitted that the findings recorded in support of convictionby the High Court are in conformity with the evidence on record, assuch there are no grounds to interfere with the same. Lastly, it is submittedthat if the view taken by the trial court is a possible view, having regardto the evidence on record, it is not open for the appellate court, unlessthere are compelling and strong grounds made out for interference butat the same time when the findings recorded by the trial court are not inconformity with the evidence on record, perverse and erroneous, it isalways open for the High Court to reverse the same. It is submitted thatin view of the common object shared by the accused to commit murderof the deceased there are no grounds to interfere with the convictionrecorded under Section 302 read with 149 IPC etc., as recorded by theHigh Court.

9. The learned counsel for the appellants placed reliance onjudgments of this Court in the case of Shivaji Sahabrao Bobade[1]wherein the scope of the appeal preferred against acquittal is consideredby this Court. In the said case this Court has considered the scope ofappeal against acquittal, as a matter of practice. Incidentally, in the saidcase, this Court has also held that while appreciating evidence in criminaltrials, as far as the nature of depositions by rural witnesses is concerned,courts not to judge their evidence by same standard of exactitude andconsistency as that of urban witnesses. In the judgment in the case ofV. N. Ratheesh[3]power of the appellate court in appeals against acquittalis considered by this Court. Similarly in the judgment in the case ofKanhaiya Lal[2] this Court has held that while dealing with appeals againstacquittals unless there are substantial and compelling reasons and goodand sufficient grounds and very strong circumstances, interference isnot called for.

10. It is true that in various authoritative pronouncements, thisCourt has circumscribed the scope of appeal under Section 378 of theCr.PC, in cases where appeal is preferred against acquittal recorded by AB

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Athe trial court. Further, it is also settled proposition that unless the viewtaken by the trial court is not a possible view, normally the High Courtshould not interfere with the acquittal recorded by the trial court. Therecannot be any straight-jacket formula to apply readily for the cases inappeals arising out of acquittal recorded by the trial court. Whether theview taken by the trial court is a possible view or not; whether the findingsBrecorded by the trial court are in conformity with the evidence or not;are the matters which depend upon facts and circumstances of eachcase and the evidence on record. By reappreciating evidence on recordif appellate court comes to conclusion that findings recorded by the trialcourt are erroneous and contrary to law, it is always open for the appellateCcourt, by recording good and compelling reasons for interference andoverturn the judgment of acquittal by converting the same to that ofconviction.

11. In this case, it is to be noted that the deceased; PWs-1 to 3;and accused were closely related. The trial court has disbelieved theDevidence of PWs-1 to 3 only on the ground that they are relatives of thedeceased, forgetting the fact that PW-1 Smt. Sheshamma is the daughterof accused no.1 and PW-3 is no other than the wife of accused no.1. Itis clear from the evidence on record that they are rustic villagers andincident happened when they were returning to their house after attendingthe coolie work. In Ex.P-1 it self PW-1 has stated that there was disputeEbetween her deceased husband and his elder brother Husanayya (PW-2) on one side and her father (accused no.1 – Devendrappa) and hisbrothers on other side in respect of sharing of tapping of toddy trees. Asa result of such dispute, her senior and junior uncles were telling her thatshe should not come towards the side of their house. Further, PW-1

FSmt. Sheshamma, who was accompanying the deceased at the time ofthe incident, has stated in her evidence that at about 06:00 a.m. she, herdeceased husband and also PW-2 – Husanayya, together went to attendcoolie work and when they were returning to their house, at about 11:30a.m. assault was made near the hostel. It is quite natural that in rural areas, going to work in early hours and coming back to their home aroundG11-11:30 a.m. to have their food. She has also clearly stated in herdeposition that A-1 – Devendrappa (who is now dead) hit with axe onthe left cheek of the deceased, A-3 – Dattayya hit the deceased withbedaga (a sharp-edged agricultural instrument) on his head, A-4 – Manikassaulted with club on the head of the deceased, and A-5 – BasayyaHalso assaulted the deceased with axe on his head. If we examine the

testimony of PW-1 closely, it is clear that it is consistent with herallegations in her complaint – Ex.P-1. Ex.P-6 is the postmortemexamination report in which the external injuries on the dead body of thedeceased were mentioned. If the complaint made by PW-1 and hertestimony are considered along with the injuries found in Ex.P-6 –postmortem report, it makes it clear that the said injuries referred in thepostmortem report are attributable to overt acts of the accused nos.2 to5, as stated in the complaint. PW-1 has not made any improvements,omission or contradiction, so far as it relates to details of occurrence ofthe incident in the manner alleged in the complaint – Ex.P-1 and asdeposed by her in the examination-in-chief. As PW-1 is a rustic villager,discrepancies in timelines, as to the time when she was examined byPW-14 (doctor) for the said injuries cannot go to the root of the prosecutioncase and further it is to be noted that she sustained injury on the saiddate and she was examined by PW-14. The deposition of PW-1 appearsto be truthful and trustworthy. PW-2 – Husanayya, the elder brother ofthe deceased has also stated in his evidence narrating the incident in thesame lines as that of PW-1. PW-2 is also an injured witness in the incidentand PW-10 (doctor) examined him for the said injury and Ex.P-4 is thewound certificate pertaining to injuries suffered by PW-2, issued by PW-10 – Dr. M.S. Dhadave, Senior Specialist in District Hospital, Gulbarga.The contents of the wound certificate and oral evidence of PW-2 alsoestablish that the injured PW-2 – Husanayya was brought to the hospitalby his wife with a history of assault on him on the same day byDevendrappa (A-1) and others. PW-3 – Smt. Sayamma is none otherthan the wife of accused no.1 – Devendrappa who died during thependency of trial and mother of PW-1. There is absolutely no reason forPW-3 to depose against her own husband making such serious allegations.If the depositions of PW-1 to PW-3 are considered along with thedocumentary evidence on record and medical evidence of PWs-10 and14, it is crystal clear that their evidence is natural, trustworthy andacceptable. The trial court has disbelieved their testimony by referringto some minor contradictions. This Court, in the case of NarayanChetanram Chaudhary & Anr. v. State of Maharashtra[5], hasconsidered the minor contradictions in the testimony, while appreciatingthe evidence in criminal trial. It is held in the said judgment that onlycontradictions in material particulars and not minor contradictions can ABC

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Abe a ground to discredit the testimony of the witnesses. Relevant portionof Para 42 of the judgment reads as under:

“42. Only such omissions which amount to contradiction in materialparticulars can be used to discredit the testimony of the witness.The omission in the police statement by itself would not necessarilyBrender the testimony of witness unreliable. When the version givenby the witness in the court is different in material particulars fromthat disclosed in his earlier statements, the case of the prosecutionbecomes doubtful and not otherwise. Minor contradictions arebound to appear in the statements of truthful witnesses as memorysometimes plays false and the sense of observation differ fromCperson to person. The omissions in the earlier statement if foundto be of trivial details, as in the present case, the same would notcause any dent in the testimony of PW 2. Even if there iscontradiction of statement of a witness on any material point, thatis no ground to reject the whole of the testimony of such witness.

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Though the evidence of PWs-1 to 3 is consistent, reliable andtrustworthy, the trial court, only by referring to minor contradictions,disbelieved the whole of their testimony. Thus, we are of the view thatthe findings, as recorded by the trial court in support of the acquittal, areEcontrary to evidence on record and the testimony of PWs-1, 2 and 3.Thus such findings, being perverse and erroneous, it is always open forthe appellate court to reverse such findings on reappreciation of evidenceon record. As regards the contradictory portion of the statement of PW-14 pointed out by learned counsel with reference to entries under Ex.P-F6 wherein it was recorded that undigested food was found in the stomach,it is to be noticed that in Ex.P-6 itself reveals that the intestine of thedeceased was full of faecal matter, therefore, death must have occurredbetween 3 to 12 hours prior to the postmortem examination, whichsupports the prosecution case. In that view of the matter, the contradictoryportion of the statement of PW-14 needs to be discarded and notGsignificant to discard total evidence on record. In view of the foregoing,we are of the view that the judgments relied on by the learned counselfor the appellants would not render any assistance in support of her casethat the High Court has committed error in reversing the acquittal recordedby the trial court. Having regard to evidence on record, as we are of theHview that the view taken by the trial court was not at all a possible view and the findings run contrary to the evidence on record, the High Courthas rightly reversed the judgment of the trial court by convicting theappellants (A-2 to A-5). Further we also do not find any merit in thecontention of the appellants that in any case it is not a case for convictionunder Section 302, IPC and same be modified to that of conviction underSection 304-II, IPC. From the evidence on record, it is clear that theassault was intentional which resulted in the death of the deceased andall accused – A-2 to A-5 – had a common object, as such the High Courthas rightly convicted the accused for offence punishable under Section302/149, IPC etc. Thus, we endorse the view of the High Court.

12. For the aforesaid reasons, we do not find any merit in thisappeal, same is accordingly dismissed.

Bibhuti Bhushan Bose

Appeal dismissed.

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