BANNAREDDY & ORS. versus STATE OF KARNATAKA & ORS.

[2018] 4 S.C.R. 623

BANNAREDDY & ORS.

STATE OF KARNATAKA & ORS.

(Criminal Appeal No. 382 of 2018)

MARCH 12, 2018

[N. V. RAMANA AND S. ABDUL NAZEER, JJ.]

Penal Code, 1860 – ss.148, 341, 504, 326 r/w.149 –Prosecution case that accused No.2 picked up quarrel with P.W-2,thereafter on same day, the accused-appellants armed with weaponsattacked P.W-2, P.W.-3 and P.W-5 – Certain witnesses intervenedand rescued the complainant-P.W-5 and other victims – Policeregistered complaint u/ss.143, 147, 148, 323, 324, 341, 307, 504,506 r/w. 149 filed by P.W-5 – Trial Court held that prosecution failedto prove the alleged offences against the accused beyond reasonabledoubt and acquitted the accused persons – However, High Courtreversed the order of acquittal and convicted the accused u/ss.148,341,504, 326 r/w. 149 – On appeal, held: Order passed bythe trial Court reaffirmed – High Court should not have re-appreciated the evidence in its entirety, especially when there existedno grave infirmity in the findings of the trial Court – Prosecutioncase suffers from several contradictions and infirmities e.g. the trialCourt rightly pointed out the contradictions in the statements givenby P.Ws-1,2 and P.Ws-3,5 regarding the incident of assault and theparticipation of the accused persons – These contradictions werematerial ones and cannot be overlooked – No specific assertionscould be proved regarding the role and involvement of the accusedpersons – Further, certain actions of the victim-respondentsthemselves were dubious, for instance admitting themselves later ina Multi-speciality hospital from reputed hospital without propercause – No documents were produced to clarify the same – Medicalevidences produced by the victims prove that, they had not sustainedany fatal injuries – Prosecution was not able to establish the guiltof the accused persons beyond reasonable doubt.

Allowing the appeal, the Court

HELD: 1. The trial court has rightly pointed out thecontradictions in the statements given by P.W.1 and P.W.2 623

Aregarding the incident of assault and the participation of theaccused persons. These contradictions are material ones andcannot be overlooked. [Para 17] [630-D-E]

2. Similarly, after the perusal of the statements of P.W.3and P.W.5, there exist contradictions with regard to the incidentBand the role played by the different accused persons. The trialcourt has correctly arrived at conclusion on this aspect. Further,it is to be noted that, although the above witnesses have statedthat there were several eye witnesses to the above incident whointervened to stop the assault, except P.W.1 and P.W.13, otherwitnesses have turned hostile. Apart from the other victims, P.W.1Cremains the sole witness to the said incident, but it is to be notedthat the statements given by all of them are not in conformitywith each other, rather differ on material points regarding thecommission of the act itself. In the light of this, it is not appropriateto place reliance on these statements. [Para 18] [630-E-G]

D3. Another major contradiction in the prosecution’s version,as rightly noted by the trial court, is the statement of P.W.14,who according to the eye witnesses had intervened in the saidfight, as it was happening in the vicinity of his house. But, in clearcontravention to the above version, P.W.14 states that he wasEout of station on the said date and on returning back to the villageat night around 11.00 pm he came to know about the said incident.[Para 19] [630-H; 631-A]

4. It is to be noted that certain actions of the victims wereinexplicable drawing our suspicion specifically the behavior ofthe victim after the incident. It is an admitted fact that after theFsaid incident the victims were taken to the Government Hospital.As P.W.5 sustained simple injuries on his right shoulders therebyhe was not referred for any further treatment. P.W.2 and P.W.3having sustained injuries in their head were referred to the KIMSHospital for further treatment. But the trial court noted that noGdocuments or certificate regarding the admission or treatmentof the victims to this effect were placed on record. The trial courtrightly pointed out that P.W.19 who treated the victims both inthe well reputed KIMS Hospital and later in Multi SpecialityHospital, admitted that KIMS Hospital is well equipped to treat

the victims, then it is unclear why were the victims asked to shiftto Multi Speciality Hospital. No documents were produced toclarify the same. The medical evidences produced by the victimsprove that, they had not sustained any fatal injuries. In suchcircumstances, it is quite suspicious as to why were the victimsshifted from KIMS Hospital to Multi Speciality Hospital,particularly, P.W.5, in spite of not being referred by any medicalofficer got himself admitted to KIMS Hospital and later to MultiSpeciality Hospital. The trial court thereby noted that the victimswere trying to generate incriminating evidences against theaccused appellants. [Para 21] [631-D-H]

5. Coming further to address the guilt of the accused underSection 149, the prosecution has failed to establish theinvolvement of all the accused persons. Although the overt actsof certain accused such as accused no.1 (Bannareddy), accusedno. 2 have been mentioned in the statements of the victims andother witnesses. But no mens rea or actus reus could be attributedtowards the rest of the accused persons to establish their guiltunder Section 149 of the IPC. [Para 22] [632-A-B]

6. Keeping in view the facts and circumstances of the case,the prosecution was not able to establish the guilt of the accusedpersons beyond reasonable doubt. Further, the High Court shouldnot have re-appreciated evidences in its entirety, especially whenthere existed no grave infirmity in the findings of the trial court.There exists no justification behind setting aside the order ofacquittal passed by the trial court, especially when the prosecutioncase suffers from several contradictions and infirmities. Nospecific assertion could be proved regarding the role andinvolvement of the accused persons. Further, certain actions ofthe victim-respondents themselves are dubious, for instanceadmitting themselves later in Multi-speciality hospital withoutproper cause. [Para 27] [633-C-E]

Sambhaji Hindurao Deshmukh and Ors. v. State ofMaharashtra (2008) 11 SCC 186; Rabindra Kumar Pal@ Dara Singh v. Republic of India, (2011) 2 SCC 490 :[2011] 1 SCR 929 – referred to.

ACase Law Reference

(2008) 11 SCC 186referred toPara 11[2011] 1 SCR 929referred toPara 12

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.B382 of 2018.

From the Judgment and Order dated 29.11.2017 by the High Courtof Karnataka at Dharwad Bench in Criminal Appeal no. 100108/2014]

H. N. Nagamohan Das, Sr. Adv., C. M. Angadi, B. V. Somapur,Rameshwar Prasad Goyal, Advs. for the Appellants.

Joseph Aristotle S., Ashish Yadav, N. D. B. Raju, Ms. KrishnaBipin, Uday Dubey, Advs. for the Respondents.

The Judgment of the Court was delivered by

N. V. RAMANA, J. 1. Leave granted.D2. This appeal by special leave is directed against the judgmentdated 29[th] November, 2017 passed by the High Court of Karnataka,Bench at Dharwad in Criminal Appeal No. 100108 of 2014.

3. Vide impugned judgment, the appellants were convicted in thefollowing manner-E

i. Under Section 148 read with Section 149 of the Indian PenalCode (hereinafter “IPC”) were sentenced to undergo simpleimprisonment of 18 months and fine of Rs. 3,000/-, in default of paymentof fine they have to undergo further simple imprisonment for one month;

ii Under Section 341 read with Section 149 of IPC wereFsentenced to undergo simple imprisonment for period of fifteendays and fine of Rs. 200/- was imposed, in default of payment offine they have to undergo further simple imprisonment for period ofone week;

iii. Under Section 504 read with Section 149 of the IPC and haveGto undergo simple imprisonment for period of one year and fine ofRs. 1000/- was imposed, in default of payment of fine they have tofurther undergo simple imprisonment for period of fifteen days;

iv. Under Section 326 read with Section 149 of IPC, each of theaccused were sentenced to further undergo simple imprisonment for

period of four years and shall pay fine of Rs. 6000/-, in default ofpayment of fine to undergo simple imprisonment for period of twomonths.

4. Before we delve into the merits and analysis of the case, itwould be trite to refer to the Prosecution’s case. On 29.08.2008, whenthe village fair was ongoing, the accused no-2 (Dharmareddy) picked upquarrel with P.W.2 (Hemaraddi), wherein the second accused threatenedto finish P.W.2 (Hemaraddi), but this was pacified with the interventionof the persons present there. On the same day when P.W.5(Sanjeevareddy), P.W.2 (Hemaraddi) & P.W.3 (Lingareddy) werewalking to the house, at around 09:30 pm, the accused persons armedwith iron rods, clubs etc. approached them and started abusing them andrestrained them. Thereafter, they started assaulting the victims, viz. P.W.5(Sanjeevareddy), P.W.2 (Hemaraddi) & P.W.3 (Lingareddy). Certainwitnesses intervened and rescued the complainant and other victimsimmediately. As the P.W.2 and P.W.3 were injured, they were taken toNavalgund Government Hospital and later to KIMS Hospital, Hubli,thereafter they were transferred to the Sushruta Multi Speciality NursingHome.

5. The complainant P.W.5, (Sanjeevareddy) gave complaint tothe police which was registered as Crime No. 194/2008 on 29.08.2008against the accused under Sections 143, 147, 148, 323, 324, 341, 307,504, 506 read with 149 of IPC. Thereafter in the morning of 30.08.2008,the clubs and iron rods were recovered from the possession of the accused-appellant Bannareddy in the presence of P.W.6 (Devareddy) and P.W.9(Fakkirappa). On the same day the bloodstained cloths were recoveredfrom the possession of the accused appellant no. 1 in the presence ofpanch witnesses. The bloodstained clothes were recovered from thepossession of the injured Lingareddy in the presence of P.W.7 & P.W.8.Spot mazhar was conducted and sample of blood stained earth wascollected for chemical analysis in the presence of mazhar witnesses.

6. The trial Court, after careful perusal of oral and documentaryevidence available on record, by judgment dated 18.01.2014, came tothe conclusion that the prosecution failed to prove the alleged offencesagainst the accused beyond reasonable doubt. Hence, the accused wereacquitted for the offences punishable under Sections 143, 147, 148, 341,504 and 307 read with 149 of IPC.

A7. Thereafter, the State preferred the appeal before the High Courtin Criminal Appeal No.100108/2014 against the above order of acquittalpassed by the trial Court, wherein the High Court, by reversing the orderof acquittal passed by the trial Court, had convicted the accused underSections 148, 341, 504 and 326 read with 149 of IPC. Therefore, beingaggrieved by the above order of conviction, the accused appellants haveBapproached this Court.

8. Before us, learned counsel appearing on behalf of the appellantscontended that the prosecution case is full of contradictions and thematerial evidence available on record is highly inconsistent and the orderof the High Court, reversing an order of acquittal, is unsustainable.CLearned counsel has also apprised us about the existence of acompromise entered into between the parties, but it is not possible underlaw to give effect to the same and compound the offence as the offencescharged are not compoundable under Section 320 of Cr.P.C.

9. Per contra, learned counsel appearing on behalf of the StateDsupported the impugned judgment of the High Court convicting theaccused-appellants.

10. Heard both the counsels. As the offences alleged are notcompoundable, notwithstanding the fact that the parties have enteredinto compromise, we will deal with the matter on merits.

11. Before we proceed further to peruse the finding of the HighCourt, it is relevant to discuss the power and jurisdiction of the HighCourt while interfering in an appeal against acquittal. It is well settledprinciple of law that the High Court should not interfere in the wellreasoned order of the trial court which has been arrived at after properFappreciation of the evidence. The High Court should give due regard tothe findings and the conclusions reached by the trial court unless strongand compelling reasons exist in the evidence itself which can dislodgethe findings itself. This principle has further been elucidated in the caseof Sambhaji Hindurao Deshmukh and Ors. vs. State of Maharashtra,G(2008) 11 SCC 186, para 13, wherein this Court observed that:

“……The High Court will interfere in appeals againstacquittals, only where the trial court makes wrong assumptionsof material facts or fails to appreciate the evidence properly.If two views are reasonably possible from the evidence on

record, one favouring the accused and one against theaccused, the High Court is not expected to reverse theacquittal merely because it would have taken the view againstthe accused had it tried the case. The very fact that two viewsare possible makes it clear that the prosecution has not provedthe guilt of the accused beyond reasonable doubt andconsequently the accused is entitled to benefit of doubt.”

12. It is not in dispute that the presumption of innocence is furtherreinforced, reaffirmed and strengthened against the acquitted accusedby the judgment in his favor. [Vide Rabindra Kumar Pal @ Dara Singhvs. Republic of India, (2011) 2 SCC 490 in para. 94].

13. In light of the above well settled principles, we would proceedto examine the evidence and analyze whether the intervention of theHigh Court in the order of the trial court was justified.

14. At first it is appropriate to have glance at the statements ofcertain witnesses.

15. Siddappa Doddamani, P.W.1, stated that when he was nearthe temple on the date of the said incident, he saw the accused personsbeing armed with rods and clubs proceeded towards the victims’ house.Hence, he followed them out of curiosity, and saw the accused abusingthe victims. During the said quarrel, the accused no.1 assaultedSanjeevareddy on his shoulders & left leg with club and accused no.7(Ramappa) assaulted him with club by giving blow on his body. Theaccused no-2 (Dharmareddy) and accused no.8 (Venkareddy) assaultedP.W.2 (Hemareddy) with an iron rod on his left shoulder and left hand. Itwas further stated that other accused persons also assaulted the victims.Thereafter he along with P.W.14 (Vardhamangouda), P.W.15 (Sunil),P.W.16 (Yallappa), P.W.4. (Shivareddy), P.W.13- (Manjureddy) & P.W.6(Devareddy) intervened to rescue the victims. It is pertinent to note that,P.W.1 during his cross examination contradicted the above statementsmade in his examination-in-chief.

16. The victim P.W.2 (Hemareddy) stated that on 29.08.2008, theaccused no.2 (Dharmareddy) abused him and threatened to kill him inthe evening at around 5 pm near Hanuman Temple, but this was pacifiedby the intervention of P.W.4 (Shivareddy) and P.W.16 (Yellapa). Butagain at 9.30 p.m the said accused persons apprehended the victims

Anear the house of P.W.14 (Vardhamangouda) and started abusing thevictims in relation to the pending dispute between the parties. Thereafter,the accused no.9 (Mallareddy) assaulted the complainant-P.W.5(Sanjeevareddy) but not P.W.2 (Hemareddy). Accused no.1(Bannareddy) also assaulted Sanjeevareddy on the left palm. Accusedno.7 (Ramappa) assaulted Sanjeevareddy with club on his head andBother parts of the body. Accused no.3 (Hanamareddy) assaultedLingareddy on his hands and head with an iron rod. The other accusedpersons were dragging the victims towards the other accused personswho were armed with clubs, who thereafter assaulted him on his headand body. Accused no.1 (Bannareddy) assaulted Sanjeevareddy on hisCleft hand and head with iron rod. P.W.11 (Maktumsab), P.W.16 (YellapaHalawar), P.W.14 (Vardhamangouda), P.W.1 (Siddapa) along with otherscame to their rescue. He further stated that, as the victims had sustainedinjuries, his brother Venkatareddy shifted them to Navalgund GeneralHospital for treatment, thereafter they were transferred to the KIMSHospital, after being discharged from there, they were admitted inDShushruta Hospital.

17. The trial court has rightly pointed out the contradictions in thestatements given by P.W.1 and P.W.2 regarding the incident of assaultand the participation of the accused persons. These contradictions arematerial ones and cannot be overlooked.E

18. Similarly, after the perusal of the statements of P.W.3 andP.W.5 we note that, there exist contradictions with regard to the incidentand the role played by the different accused persons. The trial court hascorrectly arrived at conclusion on this aspect. Further, it is to be notedthat, although the above witnesses have stated that there were severalFeye witnesses to the above incident who intervened to stop the assault,except P.W.1 (Siddappa) and P.W.13 (Manjureddy), other witnesses haveturned hostile. Apart from the other victims, P.W.1 (Siddappa) remainsthe sole witness to the said incident, but it is to be noted that the statementsgiven by all of them are not in conformity with each other, rather differGon material points regarding the commission of the act itself. In the lightof this, it is not appropriate to place reliance on these statements.19. Another major contradiction in the prosecution’s version, asrightly noted by the trial court, is the statement of P.W.14(Vardhamangouda), who according to the eye witnesses had intervened

in the said fight, as it was happening in the vicinity of his house. But, inclear contravention to the above version, P.W.14 states that he was outof station on the said date and on returning back to the village at nightaround 11.00 pm he came to know about the said incident.

20. Although motive becomes irrelevant in the presence of directevidences, however, the prosecution has submitted that the accused andvictims were from different political parties, and political rivalry may bethe motive behind the assault. Although the victims were followers ofP.W.14- (Vardhamangouda), who was the chairman of the panchayat atthe time of incident, but surprisingly he has not supported the case of theprosecution. Further it is to be noted that, there existed prior enmitybetween the accused- appellants and the complainant victims regardingboundary of their land. The dispute has been continuing for the past 10-15 years which could not be resolved even with the intervention of theother villagers.

21. It is to be noted that certain actions of the victims wereinexplicable drawing our suspicion specifically the behavior of the victimafter the incident. It is an admitted fact that after the said incident thevictims were taken to the Government Hospital, Navalgund. As P.W.5(Sanjeevareddy) sustained simple injuries on his right shoulders therebyhe was not referred for any further treatment. P.W.2 and P.W.3 havingsustained injuries in their head were referred to the KIMS Hospital,Hubli for further treatment. But the trial court noted that no documentsor certificate regarding the admission or treatment of the victims to thiseffect were placed on record. The trial court rightly pointed out thatP.W.19 (Dr. Mithun Sattur) who treated the victims both in the wellreputed KIMS Hospital and later in Shushruta Hospital, admitted thatKIMS Hospital is well equipped to treat the victims, then it is unclearwhy were the victims asked to shift to Shushruta Hospital. No documentswere produced to clarify the same. The medical evidences produced bythe victims prove that, they had not sustained any fatal injuries. In suchcircumstances, it is quite suspicious as to why were the victims shiftedfrom KIMS Hospital to Shushruta Multi Speciality Hospital, particularly,P.W.5 (Sanjeevareddy), in spite of not being referred by any medicalofficer got himself admitted to KIMS Hospital and later to ShushrutaMulti Speciality Hospital. The trial court thereby noted that the victimswere trying to generate incriminating evidences against the accusedappellants.

A22. Coming further to address the guilt of the accused under Section149, the prosecution has failed to establish the involvement of all theaccused persons. Although the overt acts of certain accused such asaccused no.1 (Bannareddy), accused no. 2. (Dharmareddy) have beenmentioned in the statements of the victims and other witnesses. But nomens rea or actus reus could be attributed towards the rest of the accusedBpersons to establish their guilt under Section 149 of the IPC.

23. The trial court has correctly observed that, the statementsmade by the mazhar witness regarding recovery of material cannot berelied on, as they have turned hostile. Even the recovery of the bloodstained mud seems conspicuous considering the fact that, the given dateCof incident was admitted to be drizzly and thousands of devotees hadcome to witness the fair. In such circumstances, it is very unlikely that,the blood samples could have been collected the next day.

24. The High Court has relied upon the statement of P.W.3, whereinhe stated that, rest of the accused were dragging the injured to assist theDother accused persons with weapons to assault them. This allegation isvery wide and made in vague manner, the same is not supported by anyother evidence. It will not be appropriate to rely upon the evidence ofvictims solely to prove the culpability of the accused persons. Thereforethe trial court has correctly held that, when any overt act could not beEassociated with these accused, provisions of Section 149 IPC will not beattracted.

25. The High Court has failed to take note of the fact that thepanchas to the seizure pachanama have turned hostile. Although theinvestigating officer seized weapons which were identified by the victimsFand certain eyewitnesses, however, it is pertinent to note the all thewitnesses have turned hostile except P.W.1 and P.W.13. Although P.W.1(Siddappa) in his cross-examination stated that he could recognize theweapons in M.O.No.1 and No.2 as he has seen them, but contradictedhis own statement by stating that he could not say any special featuresof the weapons used in the offence. Further P.W.13 also recognized theGweapons as the same used in the assault. But it must be noted that,P.W.13 seems to be an interested witness considering his relationshipwith P.W.3. In such circumstances, wherein the panch witnesses haveturned hostile, it is not safe to rely upon the recovery of these weaponsto substantiate the guilt of the accused persons. Further we are suspicious

about the collection of blood samples, especially when it is an admittedfact that the incident took place on mud road when it kept drizzlingthroughout and additionally thousands of devotees were present in thevillage attending the fair. In the light of such circumstances, the collectionof blood samples seems unlikely.

26. In the present case, when the facts as to the incident and therole of the accused could not be proved beyond reasonable doubt,whether the motive behind the same is dispute regarding boundary wallor political rivalry becomes irrelevant.

27. Keeping in view the facts and circumstances of the case, wehold that the prosecution was not able to establish the guilt of the accusedpersons beyond reasonable doubt. Further, the High Court should nothave re-appreciated evidences in its entirety, especially when thereexisted no grave infirmity in the findings of the trial court. There existsno justification behind setting aside the order of acquittal passed by thetrial court, especially when the prosecution case suffers from severalcontradictions and infirmities. No specific assertion could be provedregarding the role and involvement of the accused persons. Further,certain actions of the victim-respondents themselves are dubious, forinstance admitting themselves later in Multi-speciality hospital withoutproper cause. It has further come to our notice that respondents havealready compromised and have executed compromise deed to thatextent, though the same is not the basis for our conclusion.

28. Therefore, we set aside the conviction order passed by theHigh Court and reaffirm the order of acquittal passed by the trial court.The appellants are to be released from custody forthwith.

29. The appeal is allowed accordingly. Pending applications, ifany, shall also stand disposed of.

Ankit Gyan

Appeal allowed.