RAVASAHEB @ RAVASAHEBGOUDA ETC. versus STATE OF KARNATAKA
[2023] 2 S.C.R. 965, Supreme Court of India, 2023
Outcome: Dismissed (Dismissed)
Segment: Ratio
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RAVASAHEB @ RAVASAHEBGOUDA ETC.
v.
STATE OF KARNATAKA
(Criminal Appeal Nos. 1109-1110 of 2010)
MARCH 16, 2023
[B. R. GAVAI, VIKRAM NATH AND SANJAY KAROL, JJ.]
Penal Code, 1860 – s.302 – Victim was murdered – The trial
court and the High Court, despite most of the prosecution witnesses
turning hostile, found the prosecution case to be established beyond
reasonable doubt through the unrefuted testimony of PW-1 and
convicted the accused persons – The only point for consideration
on appeal was, whether eight men can be convicted based on the
testimony of a solitary witness, who was the only eyewitness to the
crime – Held: Presence of the accused on the spot is not disputed
by anyone – Witness, despite being cross-examined extensively, is
consistent in his testimony to the effect that the accused caught
hold of the deceased and inflicted serious injuries upon his person
– Though, the witness is not clear as to which one of the accused
had assaulted the deceased after he fell down, but then he is
categorical with regard to the role played by each one of them –
Testimony of the sole eyewitness PW-1 is worthy of credence,
trustworthy, truthful and believable and the prosecution had
established its case beyond reasonable doubt against all accused
persons – The findings of the trial court and the High Court upheld.
Dismissing the appeals, the Court
HELD: 1. The presence of the accused on the spot is not
disputed by anyone of them. This Court may say so not only
from
the line of their cross-examination of the witnesses but also it is
noticed hereinafter, to have come on record through the
testimonies of the witnesses, who despite not having supported
the prosecution on the issue of the accused having assaulted the
deceased, have supported on this count. Perusal of cross-
examination part of the testimony of PW-1 unrefutedly reveals
all the accused hiding in bushes at the spot. This witness, despite
being cross-examined extensively, is consistent in his testimony
to the effect that the accused caught hold of the deceased and
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inflicted serious injuries upon his person. The accused had used
chilli powder as a weapon to stop him from fleeing away and pushed
him to the ground. Though, the witness is not clear as to which
one of the accused had assaulted the deceased after he fell down,
but then he is categorical with regard to the role played by each
one of them. The questions in respect of the testimony of the
sole eye-witness PW-1 being worthy of credence, trust-worthy,
truthful and believable are answered in the affirmative. [Paras 12
and 14][973-B-G]
2. Merely because no recovery was made from anyone apart
from accused Nos.2 and 4 would not mean that others were not
present at the scene of the crime; simply because a number of
witnesses had turned hostile, does not on its own give a ground
to reject the evidence of PW-1; and that PW-1 being the brother
of the deceased and therefore, is an interested as well a chance
witness, are untenable submissions. It is in the backdrop this
Court does not find favour with the submissions of senior counsel
appearing for the appellants that the conviction of eight persons
based on solitary evidence is not justified, particularly when there
is no vagueness in his testimony with respect to the role ascribed
to each one of the accused. [Para 21][978-F-H]
3. The role of PW-24 in drafting the complaint cannot be
taken as negative simply because he was an advocate and so he
paid attention to detail. PW-1 has
stated in his complaint that he
does not know how to read and write. The person to whom the
role of summoning PW-24 to write the complaint may be attributed
or the discrepancy in drafting either on the instructions of PW-1
or on the basis of the notes prepared by the police is not so stark,
keeping in view the limited span of time within which all these
activities took place for it to lend credence to the grounds urged
in these appeals by special leave petitions with respect to the
approach of the Sessions Judge being entirely erroneous or illegal.
The genesis of the prosecution case cannot be said to have been
shaken or rendered doubtful. The complaint was alleged to have
been drafted by an advocate (PW-24), and not by the petitioner
with the help of the police personnel. Does it cast doubt on the
prosecution case? In this Court’s considered view, none. For, as
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this Court has noticed the defence to have admitted their
presence on the spot and the independent witnesses ascribed a
specific role to each of the accused. [Para 22][979-A-D]
4. The holding in the landmark Masalti, where four learned
judges have held that the prosecution need not prove specific
acts to specific persons. With neither the number nor the
presence of the accused being disputed, this Court cannot, within
law, hold that the accused have been wrongly convicted by the
courts below. [Para 24][980-A-B]
Marudanal Augusti v. State of Kerala (1980) 4 SCC
425; Chotkau v. State of U.P. (2022) SCC OnLine 1313;
Mrinal Das v. State of Tripura (2011) 9 SCC 479 :
[2011] 14 SCR 411; Rohtash Kumar v. State of Haryana
(2013) 14 SCC 434 : [2013] 3 SCR 884; Bhagwan
Jagannath Markad v. State of Maharashtra (2016) 10
SCC 537 : [2016] 5 SCR 452; Karan Singh v. State of
Uttar Pradesh (2022) 6 SCC 52; Karunakaran v. State
of Tamil Nadu (1976) 1 SCC 434 : [1976] 2 SCR 708;
Sadhuram v. State of Rajasthan (2003) 11 SCC 231;
Bhagwan Jagannath Markad v. State of Maharashtra
(2016) 10 SCC 537 : [2016] 5 SCR 452; Gopal Reddy
v. State of Andhra Pradesh (1979) 1 SCC 355 : [1979]
2 SCR 363; State of Rajasthan v. Doud Khan (2016) 2
SCC 607 : [2015] 13 SCR 1131; Mehraj v. State of
U.P. (1994) 5 SCC 188 : [1994] 3 SCR 592; Ombir
Singh v. State of U.P. (2020) 6 SCC 378; Satpal Singh
v. State of Haryana (2018) 6 SCC 610; Ram Gopal v.
State of M.P. (2023) SCC OnLine 158; Lalji v.
State of
U.P. (1989) 1 SCC 437 : [1989] 1 SCR 130; Masalti v.
State of UP AIR 1965 SC 202 : [1964] SCR 133; Atley
v. State of UP AIR 1955 SC 807; Gurudutt Pathak v.
State of U.P. (2021) 6 SCC 116; Geeta Devi v. State of
U.P. 2022 SCC OnLine 57; Sharad Birdhichand Sarda
v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1
SCR 88; Kalamani Tex v. P. Balasubramanian (2021) 5
SCC 283; Bhajan Singh @ Harbhajan Singh v. State
of Haryana (2011) 7 SCC 421 : [2011] 7 SCR 1;
RAVASAHEB @ RAVASAHEBGOUDA ETC. v. STATE OF
KARNATAKA
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Jagdish v. State of Haryana (2019) 7 SCC 711 : [2019]
11 SCR 22; Harbans Kaur v. State of Haryana (2005)
9 SCC 195 : [2005] 2 SCR 450; Bhaskarrao v. State of
Maharashtra (2018) 6 SCC 591 : [2018] 4 SCR 751;
RajeshYadav v. State of U.P. 2022 SCC OnLine 150;
State of Rajasthan v. Madan (2019) 13 SCC 653 –
referred to.
Case Law Reference
[2011] 14 SCR 411
referred to
Para 17.1 (c)
[2013] 3 SCR 884
referred to
Para 17.2
[2016] 5 SCR 452
referred to
Para 17.2
[1976] 2 SCR 708
referred to
Para 17.3
[2016] 5 SCR 452
referred to
Para 17.4
[1979] 2 SCR 363
referred to
Para 17.5
[2015] 13 SCR 1131
referred to
Para 17.6
[1994] 3 SCR 592
referred to
Para 17.6
[1989] 1 SCR 130
referred to
Para 17.8
[1964] SCR 133
referred to
Para 17.8
[1985] 1 SCR 88
referred to
Para 17.10
[2011] 7 SCR 1
referred to
Para 20
[2019] 11 SCR 22
referred to
Para 23
[2005] 2 SCR 450
referred to
Para 25
[2018] 4 SCR 751
referred to
Para 25
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 1109-1110 of 2010.
From the Judgment and Order dated 20.11.2009 of the High Court
of Karnataka, Cirkcuit Bench at Dharwad in Crl.A.Nos. 546 and 599 of
2006.
With
Crl. A. Nos. 1229, 1230 of 2011, 213 of 2012 and 682 of 2013.
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Nagamuthu S., Dr. K. Radhakrishnan, Sr. Advs., Rameshwar
Prasad Goyal, C. M. Angadi, Manish Goswami, M. Venkatesulu,
Ms. Manisha Chava, Ms. Himani Pandey, Vairawan, Mrs. Rajani K.
Prasad, B. Krishna Prasad, Ms. N. Annapoorani, Ms. Sunita Singh, Ms.
Abha R. Sharma, Advs. for the Appellants.
Shubhranshu Padhi, Vishal Banshal, Ms. Rajeshawari Shankar,
Niroop Sukrithy, Mohd. Ovais, V. N. Raghupathy, Manendra Pal Gupta,
Advs. for the Respondent.
The Judgment of the Court was delivered by
SANJAY KAROL J.
1. The only point which arises for consideration is whether on the
basis of testimony of a solitary witness, eight men can be allowed to
suffer incarceration for life, as has been concurrently bound to examine
as to whether the testimony of this sole eye-witness Yankappa
Panchagavi (PW-1) is worthy of credence; Is he trustworthy?; Has he
deposed truthfully?; Is his testimony believable and free from
embellishments, improvements or material discrepancies so as to render
it shaky or doubtful?; and as to whether the prosecution has established
its case beyond reasonable doubt, against all accused persons or not?
All this is what we are called upon to examine.
2. It is not in dispute that one Satyappa was found to have been
murdered in broad day light in village Kaltippi, Jamakhandi Taluka. It is
also not in dispute that in relation to the said incident, the very same day,
i.e., on 13.08.2004 at 04.00 p.m. a report was lodged with Terdal Police
Station, District
Bagalkot, Karnataka. It is also not in dispute that the
I.O Shri Hanamappa Sangappa Keri (PW-32), who conducted the
investigation reached the spot and after making preliminary inquiries
and conducting investigation, recovered the dead body and sent it for
post- mortem which was conducted by Dr. Shabbir Patel, PW-27. The
post-mortem report (Ex.P-25) duly proven by the said expert, does
establish the deceased to have sustained 21 stab injuries inflicted on
different vital parts of the body. The multiple injuries serious in nature,
were caused by sharp-edged weapon(s). They being on all the vital
parts of the body, resulted into the death of the deceased. Herein only,
this Court notices, that in relation to the said crime, the trial court convicted
all the eight accused persons, namely, Ramappa (accused No.1), Shanker
(accused No.2), Krishnappa (accused No.3), Gulappa Gavappa Karigar
RAVASAHEB @ RAVASAHEBGOUDA ETC. v. STATE OF
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(accused No.4), Beerappa (accused No.5), Ravasaheb Laxman Patil
(accused No.6), Yankappa Shivappa Naik (accused No.7) and Parappa
@ Gulappa (accused No.8), for having committed murder of the deceased
with the use of different weapons, i.e., jambia/jambe (sharp-edged
weapon), button knives. Chilli powder was also used as a weapon of
assault.
3. In the considered view of the trial court, despite most of the
prosecution witnesses (32 in number) having turned hostile, the prosecution
case stood established beyond reasonable doubt, through the unrefuted
testimony of PW-1 as supported by the unrefuted part of testimony on
the hostile witness, namely, Shasappa Reddi (PW-7). Hence, the trial
court convicted the accused and sentenced them to undergo imprisonment
as indicated in the tabular form hereunder :
(A-4) 
(A-6) 
(A-7) 
The sentences, identical for all accused persons, were awarded
to run concurrently.
4. The High Court, while concurring with the reasons and findings
returned by the trial court, also took note of the factum of prior animosity
inter se the parties in relation to a land/boundary dispute.
5. Before us, only three accused, namely, (i) Ravasaheb @
Ravasahebgouda (A-6), (ii) Yankappa Shivappa Naik (A-7) and (iii)
Parappa @ Gulappa (A-8), have assailed the said judgment by way of
these two appeals by special leave.
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6. Briefly, we may summarise that the deceased died as a result
of multiple injuries inflicted with sharp-edged weapons. For the sake of
brevity, we need not repeat, as already noticed supra, the injuries and
the incised wounds sustained by the deceased on different parts of the
body. Most of the spot witnesses or the witness to the events prior or
leading to the incident have not supported the prosecution. However,
that would not mean that the testimonies of all these witnesses would
automatically stand discarded, with the natural corollary being acquittal
of the accused.
7. In the exercise of the power under Article 136 of the Constitution
of India, this Court, normally would not interfere with the concurrent
findings of fact, except in very special circumstances or in the case of a
gross error committed by the courts below. Only where the High Court
ignores or overlooks “crying circumstances” and “proven facts” or
“violates and misapplies well established principles of criminal
jurisprudence” or refuses to give benefit of doubt to the accused persons,
etc., would this Court step in to correct the legally erroneous decisions.
We are also not to interfere only for the reason that we may arrive at a
different conclusion, unless, of course, there are compelling circumstances
to tinker with conclusions drawn and that the accused were innocent/
guilty. Undoubtedly, there are limitations in interfering with the findings
of conviction, concurrent in nature.
8.
We are not dealing with a case of circumstantial evidence.
Here, the evidence is direct both in relation to the crime as also the
reason thereof.
9. At this juncture, we may record the relationship between the
accused and the deceased who were far off cousins. Both the parties
were holding lands adjacent to each other. Deceased (Satyappa) is the
real brother of Yanakappa Panchagavi (PW-1). Accused Nos.4 and 5
are real brothers of accused No.1 and accused Nos.2 and 3 are sons of
accused No.1. Accused Nos.6 to 8 are all relatives of accused Nos. 1 to
5. It has come forth in the testimony of the witnesses especially PW-1,
which, to this extent stands unrefuted that there was a dispute inter se
the opposing parties with respect to the use of bullock cart road. In
relation to it, six months prior to the incident a quarrel had taken place
when accused No.1 had filed a complaint with respect thereto. The
dispute was resolved with the intervention of the elders of the family/
village. But nonetheless, allegedly, as per the statement of the said witness,
RAVASAHEB @ RAVASAHEBGOUDA ETC. v. STATE OF
KARNATAKA [SANJAY KAROL J.]
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the dispute persisted. Shasappa Reddi (PW-7) who is also a relative of
the parties, though initially stated that there was no dispute between the
deceased Satyappa and accused but then, in the very same breath,
clarifies that, 15 days prior to the incident, dispute in relation to the land
had arisen and “as per my advise accused No. 1 Ramappa has not
provided passers way to Satyappa”. Even Pandappa Sidareddi (PW-8)
does depose the factum of the dispute between the parties in relation to
the land. Thus, to our mind the findings of the courts below in relation to
the factum of the inter se dispute cannot be said to be not borne from the
material on record or incorrect appreciation of evidence led by the
prosecution.
10. The next question which arises for consideration is as to who
committed the crime, and in what manner. The courts below have
concurrently, fully appreciating the testimony of PW-1, found the accused
to have committed the same by using different weapons referred to
supra.
11. Elaborating further, having perused the testimony of PW-1 we
notice him to have deposed that on the fateful day, i.e, 13.08.2004 both
he and the deceased had met at a place known as Terdal where the
deceased handed him a sum of Rs.50,000/- which he had withdrawn
from the Grameen Bank Sasalatti branch. The deceased, after purchasing
fodder started returning on his bicycle to the Kaltippi Village (Place of
his residence). This witness
along with a pillion rider, Ashok Mareguddi
(PW-19), started following him. On the way, around 2.45 p.m. the witness
found all the accused (Nos.1 to 8), who had been hiding in the jali kanti
trees, running towards the deceased. Accused Nos.2 and 8 started
abusing that ‘found satya Sulemagane Ninnanu Kondu Hakut teve’ (You
son of a whore, we will kill you). Noticing them, the deceased leaving
his bicycle started running away from the spot with all the accused
chasing him. Thereafter, accused No.8 Parappa @ Gulappa threw chilli
powder on the face of the deceased; accused Nos.1 and 2 gave blows
with jambia/jambe on the left side of the neck and chest of the deceased;
accused Nos.3 to 7 gave blows with button knives on various parts of
the body, which led to the death of the deceased on the spot. Soon
accused fled away towards Golabhavi village. The witness cried for
help when Shasappa Reddi (PW-7), Pandappa Sidareddi PW-8), Shrishail
(PW-11) and Ramappa (PW-12) arrived at the spot. Also, adjacent land
owners, namely, Lakawwa Siddapur (PW-9) and Sushilawwa (PW-13)
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arrived. He got a complaint drafted through an Advocate, namely
Hanamant Bhimappa Reddi (PW- 24) and being illiterate, affixed his
thumb impression, and lodged report with the police.
12. Here only, we may record that the presence of the accused
on the spot is not disputed by anyone of them. This we may say so not
only from the line of their cross-examination of the witnesses but also as
we would notice hereinafter, to have come on record through the
testimonies of the witnesses, who despite not having supported the
prosecution on the issue of the accused having assaulted the deceased,
have supported on this count. Perusal of cross-examination part of the
testimony of PW-1 unrefutedly reveals all the accused hiding in bushes
at the spot. This witness, despite being cross-examined extensively, is
consistent in his testimony to the effect that the accused caught hold of
the deceased and inflicted serious injuries upon his person. The accused
had used chilli powder as a weapon to stop him from fleeing away and
pushed him to the ground. Though, the witness is not clear as to which
one of the accused had assaulted the deceased after he fell down, but
then he is categorical with regard to the role played by each one of
them.
13. PW-7, despite being hostile, in his undisputed testimony, has
recorded the presence of accused Nos.1, 2 and 3 on the spot. Immediately
after the incident they were seen fleeing towards Golabhavi Village.
Further he noticed the deceased
to be inflicted with several injuries as
also chilli powder found on his body. Here only we may record that
Lakkappa Siddapur (PW-9) and Ashok Mareguddi (PW-19) though turned
hostile in Court, had in fact made statements to similar effect before the
police, with which they were confronted, which fact, in any event stands
proven through other prosecution witnesses.
14. In view of the aforesaid, the questions in respect of the
testimony of the sole eye-witness PW-1 being worthy of credence, trust-
worthy, truthful and believable are answered in the affirmative.
15. To answer the point of law as to whether the testimony of a
single eye-witness is sufficient to put all the eight persons behind bars,
for life or not, we must deal with the submissions made at the bar.
16. It is stated that it is the quality and not the quantity of the
witnesses that matters and since, PW-1 is an interested witness being
the brother of the deceased, and that his statement is not “inherently
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believable” or of “sterling quality” as recently held by this Court, in the
presence of two possible versions, the one that favours the accused is
required to be taken.
In support of their submissions, the learned senior counsel rely
primarily on Marudanal Augusti Vs. State of Kerala (1980) 4 SCC
425, specifically on the part where the learned Division Bench notes
that 29 hours’ delay in the FIR reaching the Magistrate despite the same
having been sent by express delivery, as a “serious infirmity”; and the
recent judgment in Chotkau Vs. State of U.P. (2022) SCC OnLine
1313. Both these cases have been cited to substantiate the submission
that there is a delay in the FIR reaching the Magistrate.
17. This Court has on numerous occasions considered cases similar
in nature, and, from such consideration emanated various principles in
deciding the cases. Some of the principles essential for the instant lis to
be decided are –
17.1 Evidence of hostile witness:
a) Corroborated part of the evidence of a hostile witness regarding
the commission of offence is admissible. Merely because there is deviation
from the statement in the FIR, the witness’s statements cannot be termed
totally unreliable;
b) The evidence of a hostile witness can form the basis of
conviction.
c) The general principle of appreciating the evidence of eye-
witnesses is that when a case involves a large number of offenders,
prudently, it is necessary, but not
always, for the Court to seek
corroboration from at least two more witnesses as a measure of caution.
Be that as it may, the principle is quality over quantity of witnesses.
[Mrinal Das Vs. State of Tripura (2011) 9 SCC 479]
17.2 Effect of omissions, deficiencies:
Evidence examined as a whole, must reflect/ring of truth. The
court must not give undue importance to omissions and discrepancies
which do not shake the foundations of the prosecution’s case. [Rohtash
Kumar Vs. State of Haryana (2013) 14 SCC 434; Bhagwan
Jagannath Markad Vs. State of Maharashtra (2016) 10 SCC 537;
and Karan Singh Vs. State of Uttar Pradesh (2022) 6 SCC 52]
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17.3. Reliance on single witness:
If a witness is absolutely reliable then conviction based thereupon
cannot be said to be infirm in any manner. [Karunakaran Vs. State of
Tamil Nadu (1976) 1 SCC 434; and Sadhuram Vs. State of
Rajasthan (2003) 11 SCC 231]
17.4. Testimony of a close relative:
A witness being a close relative is not a ground enough to reject
his testimony. Mechanical rejection of an even “partisan” or “interested”
witness may lead to failure of justice. The principle of “falsus in uno,
falsus in omnibus” is not one of general application. [Bhagwan
Jagannath Markad Vs. State of Maharashtra (2016) 10 SCC 537]
17.5 Preponderance of probabilities:
To entitle a person to the benefit of a doubt arising from a duality
of views, the possible view in favour of the accused must be as nearly
reasonably probable as that against him. [Gopal Reddy Vs. State of
Andhra Pradesh (1979) 1 SCC 355]
17.6 Delay in sending FIR:
Unless serious prejudice is caused, mere delay in sending the FIR
to the Magistrate would not, by itself, have a negative effect on the case
of the prosecution. [[State of Rajasthan Vs. Doud Khan (2016) 2
SCC 607]
One of the external checks against ante-dating or ante- timing an
FIR is the time of its dispatch to the Magistrate or its receipt by the
Magistrate. A dispatch of a copy of the FIR forthwith ensures that there
is no manipulation or interpolation in the FIR. [Mehraj Vs. State of
U.P. (1994) 5 SCC 188; and Ombir Singh Vs. State of
U.P. (2020)
6 SCC 378]
17.7 Last seen theory :
On its own, last seen theory is considered to be a weak basis for
conviction. However, when the same is coupled with other factors such
as when the deceased was last seen with the accused, proximity of time
to the recovery of the body of deceased etc. The accused is bound to
give an explanation under Section 106 of the Evidence Act, 1872. If he
does not do so, or furnishes what may be termed as wrong explanation
or if a motive is established – pleading securely to the conviction of the
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accused closing out the possibility of any other hypothesis, then a
conviction can be based thereon. [Satpal Singh Vs. State of Haryana
(2018) 6 SCC 610; and Ram Gopal Vs. State of M.P. (2023) SCC
OnLine 158]
17.8 Cases involving several accused Persons
A three judge bench of which one of us (B.R Gavai J.) was a
member, observed as under in respect of the application of Section 149,
of the Indian Penal Code, 1860-
“30. Section 149 of the Indian Penal Code is declaratory of the
vicarious liability of the members of an unlawful assembly for
acts done in prosecution of the common object of that assembly
or for such offences as the members of the unlawful assembly
knew would be committed in prosecution of that object. If an
unlawful assembly is formed with the common object of committing
an offence, and if that offence is committed in prosecution of the
object by any member of the unlawful assembly, all the members
of the assembly will be vicariously liable for that offence even if
one or more, but not all committed the offence. Again, if an offence
is committed by a member of an unlawful assembly and that
offence is one which the members of the unlawful assembly knew
to be likely to be committed in prosecution of the common object,
every member who had that knowledge will be guilty of the offence
so committed.” [Hari v. State of UP 2021 SCC OnLine SC
1131; Shambhu Nath Singh v. State of Bihar, AIR 1960 SC
725]
While
overt act and active participation may indicate common
intention of the person perpetrating the crime, the mere presence in the
unlawful assembly may fasten vicariously criminal liability under Section
149. [Lalji Vs. State of U.P. (1989) 1 SCC 437]
When a case involves large number of assailants it is not possible
for the witness to describe the part played therein by each of such
persons. It is not necessary for the prosecution to prove each of the
members’ involvement especially regarding which or what act. [Masalti
Vs. State of UP AIR 1965 SC 202]
17.9 Power of Court of Appeal:
a) The Court of appeal has wide powers of appreciation of
evidence in an order of acquittal as in the order of conviction, along with
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the rider of presumption of innocence which continues across all stages
of a case. Such Court should give due importance to the judgment
rendered by the Trial Court. [Atley Vs. State of UP AIR 1955 SC
807]
b) Referring to Gurudutt Pathak Vs. State of U.P. [(2021) 6
SCC 116] the judgment in Geeta Devi Vs. State of U.P. [2022 SCC
OnLine 57], this Court appreciated the law on this aspect and then
observed that the High Court, being the First Appellate Court must discuss/
re-appreciate the evidence on record. Failure to do so is a good ground
enough to remand the matter for consideration.
17.10 Power of the Supreme Court under Article 136:
In the absence of very special circumstances or in the presence
of gross errors of law committed by the High Court, this Court does not
interfere with the concurrent findings of fact of the courts below. [Sharad
Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116]
The limitations under Article 136 are self-imposed limitations where
in the ordinary course appreciation of evidence is not to be done in the
absence of manifest error or the judgment, subject matter of the special
leave, being ex facie perverse. [Kalamani Tex Vs. P.
Balasubramanian (2021) 5 SCC 283]
18. Learned counsel for the appellants would have this Court hold
that the learned Trial Court and the High Court erred in convicting the
accused as PW-1’s statements, which are indirect in respect of number
of the accused in no way form a solid basis for the
conviction to hold.
19. Having considered the submissions across the Bar, the material
objects and the exhibits forming the record of the case, the learned Trial
Court observed that on the basis of the sole evidence of the complainant
PW-1 and the supporting evidence of PW-7 (a hostile witness) the
prosecution had proven its case beyond reasonable doubt. It was observed
as under:
“The prosecution has proved its case against the accused
persons by adducing acceptable evidence of the complainant and
other witnesses referred to above and as such the accused persons
are found guilty of the offences of unlawful assembly, commission
of rioting who were armed with deadly weapons and they have
abused the deceased Satyappa in filthy language and then they
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have committed murder of the deceased Satyappa on 13.08.2004
in the afternoon at about 3.00 p.m., on a public road leading from
Terdal to Kaltippi and as such they have to be punished
accordingly.”
The view stands affirmed by the High Court substantiating cogent
reasons, in full appreciation of entire evidence on record that the assistance
of Hanamant Bhimappa Reddi (PW-24) in drafting the complaint does
not put a question to its credibility; discrepancy in the time of entrustment
of FIR to PW-28 as to the working hours being 8 a.m. to 8.00 p.m. does
not dislodge the statement in the examination-in-chief where the time
mentioned was 4.45 p.m.
20. In regard to the delay in the FIR reaching the Magistrate, it is
the settled position of law that each and every delay caused is not fatal
to a case in the absence of demonstrated prejudice [Bhajan Singh @
Harbhajan Singh Vs. State of Haryana (2011) 7 SCC 421]. In
Chotkau (supra) it has been held that a Court is “duty bound to see the
effect of such delay on investigation and even the credit worthiness of
the investigation.” In the present case, though, while there is reliance at
the Bar on this principle no submission has been made to show prejudice
having been caused to the accused. Statements sans adequate backing
cannot sway the Court. Even the delay in the receipt of the FIR with the
concerned Magistrate cannot be a reason to disbelieve the prosecution
case. It is not a
case of non-compliance of provisions equally the delay
is not inordinate so as to cast any doubt. For an FIR registered on
13.08.2004 at 4.45 p.m. was immediately forwarded and received at
1.15 a.m.
21. Merely because no recovery was made from anyone apart
from accused Nos.2 and 4 would not mean that others were not present
at the scene of the crime; simply because a number of witnesses had
turned hostile, does not on its own give a ground to reject the evidence
of PW-1; and that PW-1 being the brother of the deceased and therefore,
is an interested as well a chance witness, are untenable submissions. It
is in the backdrop that we do not find favour with the submissions of Mr.
Nagamuthu S., and Dr. K. Radhakrishnan, learned senior counsel
appearing for the appellants that the conviction of eight persons based
on solitary evidence is not justified, particularly when there is no vagueness
in his testimony with respect to the role ascribed to each one of the
accused.
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22. The role of PW-24 in drafting the complaint cannot be taken
as negative simply because he was an advocate and so he paid attention
to detail. PW-1 has stated in his complaint that he does not know how to
read and write. The person to whom the role of summoning PW-24 to
write the complaint may be attributed or the discrepancy in drafting
either on the instructions of PW-1 or on the basis of the notes prepared
by the police is not so stark, keeping in view the limited span of time
within which all these activities took place for it to lend credence to the
grounds urged in these appeals by special leave petitions with respect to
the approach of the learned Sessions Judge being entirely erroneous or
illegal. The genesis of the prosecution case cannot be said to have been
shaken or rendered doubtful. The complaint was alleged to have been
drafted by an advocate (PW-24), and not by the petitioner with the help
of the police personnel. Does it cast doubt on the prosecution case? In
our considered view, none. For, as we have noticed the defence to have
admitted their presence on the spot and the independent witnesses ascribed
a specific role to each of the accused.
That a murder has been committed, has been unequivocally and
concurrently held by both the courts below. It is then for the appellants
before us to establish the existence of special circumstances or any
equally probable version of facts opposite to the one taken by the courts,
they seek to
challenge.
23. The primary submission led was that reliance on a solitary
witness to convict as many as eight people (now six, with proceedings
against two having abated on their death) is excessive. On a specific
query by the Court as to what the learned counsel can point to, to impeach
the veracity of PW-1’s testimony the answer was to say that looking at
a number of external factors as also the testimonies of other witnesses,
the elements to demolish the credibility are present – which to our mind
does not merit interference. For the heightened scrutiny requirement, as
observed by this Court in Jagdish Vs. State of Haryana [(2019) 7
SCC 711] to be held as unsatisfied, the surrounding evidence would
have to be called into credible question, which it was not. The admissions
made by PW-7 in his examination in chief have not been disputed and
neither has, as already observed earlier, the presence of any of the
accused been disputed. Keeping in view the principles noted in Mrinal
Das (supra), Rohtash Kumar (supra), Karan Singh (supra) and
Karunakaran (supra), the testimony of PW-1 can undoubtedly form
the basis of conviction of the accused persons.
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24. We have also noticed the holding in the landmark Masalti
(supra), where four learned judges have held that the prosecution need
not prove specific acts to specific persons. With neither the number nor
the presence of the accused being disputed, we cannot, within law, hold
that the accused have been wrongly convicted by the courts below.
25. PW-1 is an interested witness, being the brother of the
deceased; as also he being the solitary witness upon which reliance is
placed by the learned Trial Court is put forward as a ground before us to
question the verdicts. The position of law as held in Harbans Kaur Vs.
State of Haryana [(2005) 9 SCC 195] is clear in stating that there is
no proposition of law which doubts the statement of a close relative
simply for that reason. There is a note of caution sounded in Bhaskarrao
Vs. State of Maharashtra [(2018) 6 SCC 591] which is undoubtedly
on point but we may also note the observation of this Court in Rajesh
Yadav Vs. State of U.P. [2022 SCC OnLine 150] wherein it has
been observed:
“30. Once again, we reiterate with a word of caution, the trial
court is the best court to decide on the aforesaid aspect as no
mathematical calculation or straightjacket formula can be made
on the assessment of a witness, as the journey towards the truth
can be seen better through the eyes of the trial judge. In fact, this
is the real objective behind the enactment itself which extends the
maximum discretion to the court.”
26. The courts below, as we have already observed, have found
no reason to disbelieve the testimony of PW-1. In fact, to the exact
opposite it has relied on it. Keeping in view the holdings in Bhagwan
Jagannath Markad (supra), State of Rajasthan Vs. Madan [(2019)
13 SCC 653], we cannot find ourselves in agreement with the learned
counsel for the appellant in this regard.
27. In view of the aforesaid background, submissions advanced,
law appreciated and analysed we find the present appeals to be lacking
in merit and therefore, the same are dismissed. Accused, if on bail, are
directed to immediately surrender before the Court concerned.
Pending application(s), if any, shall stand disposed of accordingly.
Ankit Gyan
Appeals dismissed.
(Assisted by : Aarsh Choudhary, LCRA)