Sanjeev @ Sanjeevkumar & Ors vs State of Karnataka

We have heard learned counsel for the parties.

This appeal has been filed against the judgment dated 23.10.2007 passed by the High Court of Karnataka, by which the criminal appeal filed by the appellants was dismissed. There are three appellants in this appeal - Sanjeev @ Sanjeev Kumar (accused No. 7), Chandrappa @ Chanderkanth (accused No. 10) and Shankar (accused No.13).

Learned counsel for the appellants states that Shankar (appellant No.3) died on 24.06.2017 and the appeal stands abated against him. Now, the appeal has to be considered only with regard to appellant Nos. 1 and 2.

The prosecution case, as emerged from the record, is on 14.04.1996 i.e. on the day of Ambedkar Jananthi, the complainant (PW1) along with his wife and daughter-in-law was sitting on the platform of the house. Two residents of the colony Revanappa s/o Mallappa and Maruti s/o Basappa Boude came to him and asked as to why the complainant went in the procession of Ambedkar along with Harurgere people and did not go along with them. An altercation took place. The accused (16 in number) came in a group armed with sticks and knives and had an altercation with the complainant and others. Arjun, the elder brother of the complainant, ran towards the spot where he was stopped by several accused and stabbed by knives and hit by stick. The complainant, his son and his wife were also injured. Arjun fell on the ground. He was taken to the hospital where he was declared dead. The complainant went to the Police Station and lodged a FIR. 16 accused were charge sheeted. The prosecution examined 23 witnesses in support of the prosecution case. No witnesses were examined for defence. The statement under Section 313, CrPC was recorded. The Trial Court vide judgment dated 21.08.2004 convicted the appellants under Section 302 read with Section 34 of the IPC, accused Nos. 2, 14 and 16 under Section 324 read with Section 34 of the IPC and acquitted accused Nos. 1, 3 to 6, 8, 9, 11, 12 and 15.

Against the said conviction, the appeal was filed by accused Nos. 7, 10 and 13 which was dismissed by the High Court vide judgment dated 23.10.2007.

Learned counsel for the appellants contends that there has been contradiction in the statements of PWs 1, 7, 15 and 16. PWs 1 and 16 stated that stab injuries were made by accused Nos. 7 and 10 whereas PW7 did not take the name of accused Nos. 7 and 10. Learned counsel submits that this is a material contradiction due to which the appellants were entitled for acquittal. It is further submitted by learned counsel that the name of accused No.15 was taken and not of accused NO.7, which material fact has been ignored. Accused No.15, having been acquitted, the same benefit ought to be extended to accused Nos. 7 and 10 also.

Learned counsel for the State, refuting the submissions made by learned counsel for the appellants, contends that the Trial Court marshalled the entire evidence. PWs 1, 15 and 16 were all injured eye-witnesses and they, having proved by their eye-witness account that it was accused Nos. 7 and 10 who have stabbed the deceased and the stab injuries having been found in the post-mortem, fully proved the prosecution case and no error was committed by the Trial Court in convicting accused Nos. 7 and 10. He further submits that the mere fact that another accused has been acquitted is no ground to extend the same benefit to appellant Nos. 7 and 10.

We have gone through the evidence of PW1, 7, 15 and 16. PW1 who is the complainant and injured eye-witness, in his statement, clearly mentioned that the person who attacked his brother with knife were Sanjeev (A7), Chanderappa (A10), Ishwar (A11), Shanker (A13), Babu (A14) and Suraj (A16).

The names of accused Nos. 7 and 10 have been clearly taken by PW1 who was the complainant. The wife of the complainant is also an eye-witness who clearly stated in her evidence that it was accused Nos. 7 and 10 who inflicted the stab injuries though the son of the complainant had not taken the name of accused Nos. 7 and 10.The mere fact that one of the witnesses had not taken the name cannot lead to a conclusion that the evidence of PW1, 15 and 16 are not believable.

The Trial Court in its judgment has elaborately considered the evidence of witnesses and believed the same. The post-mortem has been brought on the record which clearly indicates that there are four punctured incised wounds and three perforated incised wounds.

The ocular evidence is corroborated by the medical evidence.

The submission of learned counsel for the State is that accused No.15 has been let off is no ground to claim any such benefit by the appellants, he has placed reliance on the judgment of this Court in Surajit Sarkar v. State of West Bengal [(2013) 2 SCC 146] where this Court in para 58 to 61 has laid down the following:-

"58. In Gurcharan Singh v. State of Punjab, this Court held, in a case where some accused persons were acquitted and some others were convicted as follows: (AIR p.463, para9)

The highest that can be or has been said on behalf of the appellants in this case is that two of the four accused have been acquitted, though the evidence against them so far as the direct testimony went, was the same as against the appellants also; but it does not follow as a necessary corollary that because the other two accused have been acquitted by the High Court the appellants also must be similarly acquitted."

The learned counsel for the State drew our attention to Komal in which it was held that merely because some of the accused persons have been acquitted by being given the benefit of doubt does not necessarily mean that all the accused persons must be given the benefit of doubt. It was observed that :(SCC p91 para 13)

"13... to complicity of two accused persons who were armed with guns having been doubted by the High Court itself, they have already been acquitted which cannot in any manner affect the prosecution case so far as the appellants are concerned against whom the witnesses have been consistently deposed and their evidence has been found to be credible."

Similarly in Gangadhar Behera reliance was placed on Gurcharan Singh and it was held: (Gangadhar Behera case, SCC pp. 392-93, para 15)

"15... Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corrollary that those who have been convicted must also be acquitted. It is always open to a court to differential the accused who had been acquitted from those who were convicted. Gangadhar Beherea was cited with approval somewhat recently in Prathap v. State of Kerala.

We agree that Surajit Sarkar cannot be absolved of his involvement in the death of Gour Chandra Sarkar merely because the other accused persons were either not identified by the eye-witnesses or had no role to play in the attack on Gour Chandra Sarkar. There is the cogent and reliable evidence of PW8 Achintya Sarkar to hold that Surajit Sarkar attacked Gour Chandra Sarkar which ultimately resulted in his death. The contention of the learned counsel for Surajit Sarkar is rejected."

The above judgment fully support the contention of the State. Having gone into the oral evidence of the parties and the judgment of the Courts below, we are of the view that no error has been committed by the Courts below in convicting the accused. There is no merit in the appeal.

The criminal appeal is dismissed. Bail bonds stand cancelled. The appellants shall be taken into custody to serve the remaining sentence.