State by Kenchalahalli vs B.K. Anjappa

Mohan M. Shantana Goudar, J.—This appeal is directed against the Judgment and Order of acquittal dated 4.12.2006 passed by the II Addl. Sessions Court, Kolar in S.C. No. 141/2000.

All the 17 accused including the respondents herein were tried and acquitted for the offence u/s 302 r/w 149 of IPC. It is relevant to note that Accused No. 1-Teacher Anjanappa, Accused No. 2-Sriramappa, Accused No. 4-Narasimhappa, Accused No. 10-Chikka Papanna expired during the pendency of the trial before the trial Court. Thus the Sessions Case No. 141/2000 has abated as against the said accused. It is relevant to note here itself that Accused No. 12-Anjaneya Reddy (Respondent No. 8 herein) also expired during the pendency of this appeal. Thus the appeal against Respondent No. 8/Accused No. 12 is dismissed as having been abated. The appeal is heard only against other 12 accused/respondents.

Case of the prosecution in brief is that there was ill-will between Venkatarayappa s/o late Papanna and other Harijans on one side and K.M. Maddireddy, his son K.M. Venkataraeddy and other people belonging to Vokkaliga community (Reddy) on the other side; there were cases and counter cases filed earlier; cases were filed in respect of theft of sheep; in connection with Venkataravanappa and Maddireddy having illicit relationship with Smt. Lakshmidevamma; there were also cases of assault etc.,; such ill-will continued for more than three years prior to the incident between the two groups i.e., one belonging to Harijans and other belonging to Vokkaliga community; on 10.3.2000 at about 5.30 p.m. Venkatareddy (PW. 6) and others assaulted Accused No. 7 and certain others; in that connection, Accused Nos. 1 to 11 alongwith Sapula Gangulappa s/o late Byappa went to the Chintamani Police Station to lodge the complaint; after lodging of the complaint at 4.15 p.m., all the accused came back in the bus and reached Kambalapalli village at 7.30 p.m.; after alighting from the bus, all the accused noticed deceased Krishnareddy; in pursuance of their conspiracy, Teacher Anjanappa and other accused screamed for killing Krishnareddy and others; all the accused caught hold of Krishnareddy and assaulted him with sticks, dagger and knife. The accused namely Teacher Anjanappa stabbed Krishnareddy repeatedly, consequent upon which Krishnareddy died instantaneously on the spot; after the incident at about 8.30 p.m., K.G. Venkataramanappa, Sub-Inspector of Police of Kencharlahalli Police Station recorded the statement of Sri Anjaneya Reddy at Kamabalappalli and came back to Police Station at 10.00 p.m. and registered the case in Crime No. 46/2000. After completion of the investigation, PW. 59 laid the charge sheet against the accused.

It is relevant to note here itself that after the aforementioned incident near the bus stand at about 7.30 p.m., as a counter-blast another incident took place at 7.45 p.m. wherein three houses were burnt by the Vokkaliga community (Reddy) people. The burnt houses were belonging to Harijans.

In order to prove its case, the prosecution in all examined 59 witnesses and got marked 65 Exhibits and 9 Material Objects. On behalf of the defence, no witness is examined. The trial Court on evaluation of the material on record, acquitted all the accused persons.

Sri B.T. Venkatesh, learned SPP taking us through the entire material on record submits that it is a case for re-trial inasmuch as the trial Court has proceeded mechanically for coming to the conclusion; the depositions of certain of the prosecution witnesses are stereo type, which clearly mean that the trial Court has merely copied the examination-in-chief of such witnesses; evidence of PWs. 9 and 10 coupled with the evidence of the Investigating Officer would be sufficient to bring home guilt against the accused. He further submits that the Translator ought to have been appointed for recording the evidence of PWs. 13, 14 and 21, who did not know Kannada language in which their depositions are recorded.

Per contra, Sri Appi Redely, learned advocate for the respondents/accused argued in support of the judgment of the Court below-by contending that the trial Court is justified in acquitting the accused since no material is found against any of the accused. He further submits that even if the evidence of PWs. 9 and 10 is believed, the same relates to Accused No. 1 only, who has already expired; Therefore the evidence of PWs. 9 and 10 cannot be made use of to convict other accused.

PWs. 1, 2, 3, 4, 6, 7, 11, 12, 13, 14, 21, 37, 38, 39, 40, 41 and 42 are the eye-witnesses to the incident in question. All of them have turned hostile. PWs. 9 and 10, who are the Police Constables and who were deputed to Kambalapalli village for bandobust duty are also stated to be the eye-witnesses. They have partly turned hostile inasmuch as they have not deposed about the specific overt acts of the accused other than Accused No. 1. Both these Police Constables however have deposed that the accused hurled stones on the deceased and thereafter Accused No. 1 stabbed the deceased and all other accused encircled the deceased. Thus the version of PWs. 9 and 10 mainly is against Accused No. 1.

PW. 5 is the witness for panchanama-Ex.P7; Ex.P7 relates to the mahazar of burnt house of Venkatarayappa (PW. 13).

PW. 8 is a witness for inquest panchanama-Ex.P10; He has turned hostile.

PW. 15 is the brother-in-law of the deceased Krishnareddy; He is the brother of PW. 2-Gowramma; He has turned hostile; he was supposed to depose that he was present at the residence of the deceased Krishnareddy (Water pump operator of the village) and that the deceased Krishnareddy went out of the house during the relevant time towards the water tank; however he has turned hostile.

The evidence of PWs. 16, 17, 18, 19 and 20 is identical with the evidence of PW. 15 and all of them have also turned hostile.

PW. 22, who was supposed to speak about the previous enmity between the parties has turned hostile.

PW. 23, who was supposed to depose about the motive has also turned hostile. His evidence is on par with the evidence of PW. 22.

PWs. 24 to 36, who were supposed to depose about prior rivalry and motive for the incident, have turned hostile.

PW. 43 was to depose about the land dispute between his brother-in-law Reddappa and one Doresawmy Lakkanna and that was the reason for murder of Krishnareddy i.e., PW. 43 was supposed to speak of another motive for commission of the murder. He has also turned hostile.

PW. 44 was to depose that Accused Nos. 6 and 11 were her relatives and they were hiding in her house after the murder of Krishnareddy and that they were arrested by the Police on 4.5.2000; she has not supported the case of the prosecution; she has also turned hostile.

P.W. 45 was to speak about the fact that Accused Nos. 5 and 9 are her relatives and that they were hiding in her house after the murder of Krishnareddy; she has turned hostile.

PW. 46 is the witness for seizure mahazar Ex.P7 under which button knife (Mo. 1) allegedly used for commission of the offence was seized from the burnt residence of PW. 13-Venkatarayappa; he has also turned hostile to the case of the prosecution.

PW. 47 is the shop owner at Yanamulapadi village; he is stated to have overheard Accused No. 3 speaking with Kodigal Ramesh about the incident and his participation in the murder of Krishnareddy when Accused No. 3 made telephone call from his shop at about 10.30 p.m. on the relevant day about six years prior to the incident in question; He has also turned hostile.

PW. 48 is another witness for seizure mahazar-Ex.P7 under which button knife-MO. 1 was seized from the burnt residence of PW. 13-Venkataramappa; she has turned hostile.

PW. 49 was supposed to depose that Accused No. 7 was hiding in his residence and that he was arrested on 21.4.2000; he has turned hostile.

PW. 50 is the Scientific Officer of the Forensic Science Laboratory, Bangalore; He has deposed about the examination of MO. 6 (nicker), Mo. 7 (shirt), Mo. 8 (sample mud) and MO. 9 (blood stained mud).

PW. 51 is the Circle,. Inspector of Chintamani; Kencharlahalli Police Station comes under his jurisdiction; He has received wireless message at 7.45 p.m. from PW. 9 that a person was stabbed at Kambalapaali; he also received information that the houses were being burnt at Kambalapalli; he informed Fire Station and other Police personnel; Armed Reserve Force also reached Kambalapalli; he conducted part of the investigation. He directed CW. 90 (K.G. Venkataramanappa), PSI of Kencharlahalli Police Station to register the complaint; However CW. 90 was not examined before the Court.

PW. 52 is the witness for recovery mahazar Ex.P52 under which MO. 5-club was recovered from Accused Nos. 13 and 17.

PW. 53 is the Junior Engineer who prepared the sketch of the scene of offence as per Ex. P53.

PW. 54 is the witness for recovery mahazar-Ex. P54 under which the knife-MO. 2 was recovered from Accused No. 3.

PW. 55 is another witness for recovery mahazar Ex.P54 under which MO. 2-knife was recovered from Accused No. 3.

PW. 56 is the witness for recovery mahazar Ex.P55 under which MO. 5 (club) was recovered from Accused No. 15.

PW. 57 is the witness for recovery mahazar Ex.P56 under which MO. 3-iron rod was recovered from Accused No. 8.

All the recovery panchas viz., PWs. 46 to 48 and 52 to 57 have turned hostile.

PW. 58 is the Investigating Officer who laid the charge sheet after completion of investigation.

From the above, it is clear that all the eye-witnesses except PW. 9 and PW. 10, all the witnesses for recovery panchanama, all the witnesses who were supposed to depose about motive and ill-will for the incident in question have turned hostile. Even the witnesses who were supposed to depose about certain of the accused hiding in the houses and subsequent arrest by the Police have also turned hostile.

PWs. 9 and 10 are the Police Constables. They are stated to be eye-witnesses to the incident in question. According to them, they were posted to Kambalapalli for bandobust duty during the relevant point of time. They have supported the case of the prosecution in part. Apart from the evidence of PWs. 9 and 10, the other witnesses who have supported the case of the prosecution are the Scientific Officer of Forensic Science Laboratory; Inspector of Police, who conducted the investigation and the Junior Engineer, who prepared the sketch of scene of offence. Thus virtually except the evidence of PWs. 9 and 10, no much material is found against any of the accused. In this context, we have carefully scrutinized the evidence of PWs. 9 and 10.

PW. 9 has deposed that himself and PW. 10 were deputed on bandobust duty to Kambalapalli village on 11.3.2000 and they were there till about 7.30 p.m. on duty on that day; at about 7.15 p.m. on the said day, a private bus came from Chintamani side and 15 persons alighted at Kambalapalli bus stand; all the accused who were present before the Court were among those who alighted the bus at Kambalapalli; Near the bus stand, there is a water tank and the deceased Krishnareddy (Pump Operator) was there near the water tank; all the accused including deceased Accused Nos. 1, 2, 4 and 12 shouted at Krishnareddy and hurled stones at him and thereafter Accused No. 1-Teacher Anjanappa stabbed Krishnareddy on the right portion of his stomach with a knife; Krishnareddy fell on the ground; all the accused persons had encircled Krishnareddy.

PW. 9 has further deposed that he alongwith PW. 10 were thinking of shifting the injured to the hospital, but the galata started inasmuch as people belonging to community of Krishnareddy also gathered there; all those persons dragged them (PWs. 9 and 10) and some of the persons started throwing stones at them; he received one or two blows, but no injuries were caused. PW. 9 has further deposed that he alongwith PW. 10 ran away from the scene to save their lives and thereafter went to Munganahalli village; they telephoned to Kencharlahalli Police Station, but they found that it was engaged; thereafter they telephoned to Chintamani Police Station; consequently PSI-K.G. Venkataravanappa and CPI-Anand of Chintamani came to Munganahalli village; PW. 9 and PW. 10 informed the Police Officers as to what had happened at Kambalapalli. PW. 9 has also identified knife-Mo. 1 which was held by Accused No. 1-Teacher Anjanappa, with the help of which deceased Krishnareddy was stabbed. PW. 9 has further deposed in the examination-in-chief itself that he did not see what other accused persons did when Accused No. 1 stabbed Krishnareddy.

The aforementioned evidence of PW. 9 as found in the examination-in-chief, clearly reveals that he has deposed against Accused No. 1 specifically. PW. 9 is also specific in his deposition that he did not know as to what other accused were doing when Accused No. 1 assaulted the deceased Krishnareddy. PW. 9 was treated hostile by the Public Prosecutor and he was cross-examined by the Public Prosecutor at length.

In the cross-examination PW. 9 has admitted that the Investigating Officer has recorded his statement on 28.5.2000. The incident had occurred on 11.3.2000 at 7.30 p.m. Immediately after the incident, PWs. 9 and 10 together met the Sub Inspector of Police as well as the Inspector of Police, who investigated the crime. They informed about the incident to the Investigating Officer. Despite the same, the statement of PW. 9 is recorded u/s 161 of Cr.P.C. by the Investigating officer only on 28.5.2000 i.e., after the lapse of 77 days from the date of the incident. PW. 9 further admits in the cross-examination that he has not stated before the Investigating officer that Accused Nos. 6, 7, 5 and 11 have held Krishnareddy when Accused No. 1 stabbed Krishnareddy. He has further admitted that Accused No. 3 did not stab on the stomach of the deceased after Accused No. 1 stabbed the deceased. He has specifically admitted that he did not see any of the accused holding knife-Mo. 2 on the date of the incident. Though two knives-Mos. 1 and 2 were seized, PW. 9 is specific about Accused No. 1 using MO. 1 for committing the murder of Krishnareddy. He denies the suggestion made by the Public Prosecutor that all other accused were holding the weapons.

In the cross-examination by the defence, PW. 9 has admitted that 70 to 80 persons had gathered at bus stand when he and PW. 10 went there. He further admits that when he went to bandobust duty on 11.3.2000 to Kambalapalli village, he did not know any person in that ''village by name and he also did not know as to who was doing what profession in that village; He was also not acquainted with the deceased Krishnareddy at an earlier point of time, but he came to know that he was a Water pump operator of the village only on 11.3.2010.

From the entire evidence of P.W. 9, it is clear that about 70 to 80 persons had gathered in the bus stand and he did not know the names of any of the accused. He did not even know who was doing what profession in the village. Thus it is clear that he had gone to Kambalapalli village only as a Police Constable in connection with bandobust duty and he did not have personal contact with any of the villagers. However, he is specific in his deposition that Accused No. 1 stabbed the deceased and that he did not see any of the other accused persons holding any weapon on the date of the incident. Further, PW. 9 did not see any other accused indulging in any overt act. Consequently, PW. 9 completely exonerated Accused Nos. 2 to 17. But he specifically points towards the guilt of Accused No. 1.

PW. 10 is another Police Constable who was stated to be deputed on bandobust duty to Kambalapalli on 11.3.2000 alongwith PW. 9. His evidence is on par with the evidence of PW. 9. In the examination-in-chief PW. 10 has also deposed that Accused No. 1 stabbed Krishnareddy on the right portion of his stomach with a knife and Krishnareddy fell down on the ground; all other accused had encircled Krishnareddy. He has also deposed that himself and PW. 9 were thinking of shifting the injured to the hospital, but the galata started and they ran away from the place to Mungenahalli village to save their lives; thereafter information was sent by them to the PSI and CPI of Chintamani; After PSI and CPI coming to the Munganahalli village, they once again went back to Kambalapalli village alongwith them and saw some of the houses which were burnt. It is specifically admitted by PW. 10 in his examination-in-chief itself that all other accused persons did not do any overtact while Accused No. 1 stabbed Krishnareddy and they simply encircled Krishnareddy. He further admitted that he is not sure as to whether all other accused persons were alongwith Accused No. 1 or only few were with him. Consequently in the examination-in-chief itself PW. 10 gives gobye to the case of the prosecution insofar as it relates to overtacts of Accused Nos. 2 to 17 are concerned. However, he is specific about the overtacts of Accused No. 1. He is treated hostile by the Public Prosecutor and was cross-examined by the Public Prosecutor. He has denied the suggestion of the Public Prosecutor that he has stated before the Investigating officer that Accused Nos. 6, 7, 5 and 11 held Krishnareddy when Accused No. 1 stabbed him. He has denied the suggestion that Accused No. 3 also stabbed Krishnareddy on the stomach with MO. 2-knife. He has also denied having given statement before the Police as per Ex.P13. Further, he has denied the suggestion of the Public Prosecutor that he witnessed as to which of the accused did what overtact in causing the death of Krishnareddy.

In the cross-examination by the defence, PW. 10 has also admitted that 70 to 80 persons had gathered near the bus stand when PWs. 9 and 10 went there. PW. 10 further admits that when he went to Kambalapalli village on 11.3.2000 in connection with bandobust duty, he did not know any person in the said village by name and he also did not know as to who was doing what profession in the village; he was also not acquainted with the deceased Krishnareddy at any point of time; only on 11.3.2000, he carne to know that deceased Krishnareddy was a Water pump operator of village.

As aforementioned the evidence of PW. 10 is on par with the evidence of PW. 9. Both these witnesses have specifically deposed against Accused No. 1 only. They have not deposed anything against other accused. On the other hand, they specifically excluded the participation of the other accused by deposing that the other accused have not indulged in any overtact and they had simply encircled the deceased. It is also admitted by PWs. 9 and 10 that about 70 to 80 persons had gathered at the scene and they did not know any of the persons of the village by name. Looking to the overall evidence of PWs. 9 and 10, it is clear that their evidence points towards the guilt of Accused No. 1 only. In respect of other accused, either they are not certain or their version is vague. Based on such version, it cannot be said that the trial Court is not justified in acquitting the other accused.

The statements of PWs. 9 and 10 were recorded by the Police under Section- 161 of Cr.P.C. only on 28.5.2000 i.e., after the lapse of 77 days from the date of the incident. Undisputedly, PWs. 9 and 10, according to the prosecution case were on bandobust duty and they were present at the scene of offence. Both of them together went to Munganahalli village from Kambalapalli village immediately after the incident and informed the superior Police officers over phone, who in turn came to Muniganahalli village and got detailed information about the incident from PWs. 9 and 10. Thereafter PWs. 9 and 10 also accompanied senior. Police Officers such as Sub-Inspector of Police and CPI of Chintamani and PWs. 9 and 10 were present with the senior Police Officers throughout. Despite the same, their statements were not recorded by the Investigating Officer for 77 days. Absolutely no valid reason is forthcoming as to why the statements of PWs. 9 and 10 were not recorded by the Police for 77 long days after the incident. In this context, the argument of the defence counsel that PWs. 9 and 10 were not the eye-witnesses to the incident and were got up eye-witnesses only to suit the purposes of the prosecution case, appears to be plausible. If really PWs. 9 and 10 are the eye-witnesses to the incident, the Investigating Officer would not have ignored recording of their statements immediately after the incident. As a matter of fact, PWs. 9 and 10 will have to be regarded as first informants inasmuch as they gave information to the superior Police Officers initially over phone from Muniganahalli village and consequently superior Police Officers came to Muniganahalli village, met PWs. 9 and 10 and spoken with them. Thus the Investigating Officer has got the first information from PWs. 9 and 10 at the first instance. Such information given by PWs. 9 and 10 to the Investigating Officer is suppressed by the prosecution. In this view of the matter, the version of PWs. 9 and 10 appearing before the Court also becomes suspicious.

More over, as mentioned in preceding paragraphs, the evidence of PWs. 9 and 10 may not be of any help to the case of prosecution in respect of accused Nos. 2 to 17 are concerned.

In Zahira Habibulla H. Sheikh and Another Vs. State of Gujarat and Others, (popularly called ''Best Bakery Case''), the Apex Court under the peculiar facts and circumstances of that case has directed re-trial of the matter by another Court under the jurisdiction of the Bombay High Court. Based on facts and circumstances of that case, the Apex Court has observed that if one even cursorily glances through the records of the case, one gets a feeling that the justice-delivery system was being taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge; the investigation appears to be perfunctory and anything but impartial without any definite object of finding out the truth and bringing to book those who were responsible for the crime; the Public Prosecutor appears to have acted more as a defence counsel than one whose duty was to present the truth before the Court; the Court in turn appeared to be a silent spectator, mute to the manipulations and preferred to be indifferent to sacrilege being committed to justice. The Apex Court has further observed that one gets a feeling that there was really no seriousness in the State''s approach in assailing the trial Court''s judgment.

But the present case is not a fit case to order for retrial. The Public Prosecutor was given ample opportunity to support the case of the prosecution. As many as 18 eye witnesses were examined. Out of them, 16 eye-witnesses have turned hostile completely. Two of the eye-witnesses viz., PWs. 9 and 10 though are public servants have partly supported the case of the prosecution. They supported the case of the prosecution as against Accused No. 1 only. The Public Prosecutor was given ample opportunity to cross-examine the hostile witnesses. Even the witnesses for recovery mahazar and the witnesses who were supposed to depose about the motive have turned hostile. AN the witnesses for recovery panchanama have turned hostile. Therefore no useful purpose will be served in sending back the matter to the trial Court for re-trial. The re-trial cannot be ordered merely because Public Prosecutor prays for the same. Since we find that no valid grounds are forthcoming for ordering re-trial and as the grounds found in the Best Bakery case are not found in the present case, it is not a fit case to order for re-trial.

As aforementioned, except the evidence of PWs. 9 and 10, no other legal material is found against any of the accused. All the witnesses for recovery panchanama, all the witnesses who were supposed to depose about ill-will and motive and all other eye-witnesses have turned hostile. Nothing is brought out by the Public Prosecutor by cross-examination of hostile witnesses.

The evidence of PWs. 9 and 10 specifically points towards the participation of Accused No. 1 and guilt of the Accused No. 1. As aforementioned, Accused No. 1 has died during the course of trial itself and consequently, the Sessions Case stood abated against Accused No. 1 Teacher Anjanappa. Since no material is found against Accused Nos. 2 to 17 including respondents herein, the trial Court is justified in acquitting the accused. The view taken by the trial Court is the only view possible under the facts and circumstances of the case. Hence no interference is called for.

Appeal fails and the same stands dismissed.