Allowed

Yenkanna @ Yenkappa S/O Hanamantha Shahapur Ors. v. the State of Karnataka

Karnataka HC13 Jul 2016CRL.A/3505/2011

Case brief

AI extract

What is this about?

Appeals against conviction of fifteen accused under Sections 143, 147, 148, 447 and 302 read with Section 149 IPC for the murders of three persons during an assault on agricultural land on the eve of Ugadi. The court found the eye-witness testimony unnatural and inconsistent with the medical evidence, held the prosecution had not proved its case beyond reasonable doubt, and acquitted the accused.

What did the court decide?

Judgment of the court below set aside; accused acquitted and directed to be set at liberty forthwith.

Yenkanna @ Yenkappa S/O Hanamantha Shahapur… — Murder and Culpable Homicide | Karnataka HC (2016)

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IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

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DATED THIS THE 13^TH DAY OF JULY, 2016

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PRESENT

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THE HON’BLE MR.JUSTICE ANAND BYRAREDDY AND

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THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY

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CRIMINAL APPEAL No.3505/2011 C/W CRIMINAL APPEAL No.3508/2011 CRIMINAL APPEAL No.3503/2011

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CRIMINAL APPEAL No.3505/2011:

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BETWEEN:

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Yenkanna @ Yenkappa S/o Hanamantha Shahapur, Age: 66 years, Occupation: Agriculture,

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Chennabasappa @ Chennappa S/o Yenkanna @ Yenkappa Shahapur, Age: 31 years, Occupation: Agriculture,

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Sharanappa S/o Yenkanna @ Yenkappa Shahapur, Age: 30 years, Occupation: Agriculture,

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Eshappa @ Viswaradya S/o Yenkanna @ Yenkappa Shahapur, Age: 43 years, Occupation: Agriculture,

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5.	Bheemanna @ Bheemaraya S/o Yenkanna @ Yenkappa Shahapur, Age: 27 years, Occupation: Agriculture,
6.	Mahantappa S/o Yenkanna @ Yenkappa Shahapur, Age: 22 years, Occupation: Agriculture,
7.	Sanjunath @ Raghavendra S/o Eshappa Shahapur, Age: 22 years, Occupation: Goundi, Resident of Nanduvinhalli, Now residing near Vithal Mandir, Station Bazar, Gulbarga.
8.	Doddappa S/o Nagappa Bellad Age: 40 years, Occupation: Cobler, Resident of Nanduvinhalli now residing Sharannagar, Shahabad.
9.	Babu S/o Dyavappa Bellad Age: 30 years, Occupation: Cobler, Resident of Nanduvinhalli now Residing Sharannagar, Shahabad.
10.	Bheemanna S/o Nagappa Bellad Age: 33 years, Occupation: Agriculture, Resident of Nanduvinhalli, now Residing Sharannagar, Shahabad. … APPELLANTS

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(Shri Ravi B. Naik, Senior Advocate for Shri Sanjay Kulkarni, & Smt. Vijetha R. Naik, Advocates)

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AND:

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The State of Karnataka Through Farahatabad Police Station, Represented by its State Public Prosecutor High Court of Karnataka, Circuit Bench at Gulbarga,

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… RESPONDENT

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(Shri K.R. Keshavamurthy, State Public Prosecutor)

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This Criminal Appeal is filed Under Section 374 (2) of Code of Criminal Procedure, 1973, praying to set aside the judgment and order of conviction and sentence dated 04.11.2010 passed in Sessions Case No.194/2008 on the file of the I Additional District and Sessions Judge at Gulbarga convicting the appellants/accused for the offences punishable under Sections 143, 147, 148, 447 and 302 read with Section 149 of Indian Penal Code and the appellants/accused Nos.1 to 15 are sentenced to undergo simple imprisonment for a period of six months to pay fine of Rs.500/- each. In default, they shall undergo simple imprisonment for a period of one month for the offences punishable under Sections 143, 147 and 148 of Indian Penal Code. Further, the appellants/accused No.1 to 15 are sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs.1,000/- each. In default, they shall undergo simple imprisonment for a period of three months for the offence punishable under Section 447 of Indian penal Code. Further, the appellants/accused No.1 to 15 are sentenced to undergo life imprisonment and to pay fine of Rs.5,000/each. In default, they shall undergo simple imprisonment for a period of one year for the offence punishable under Section 302 of Indian Penal Code.

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CRIMINAL APPEAL No.3508/2011:

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BETWEEN:

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Yenkappa S/o Basanna Shahapur Age: 22 years, Occupation: Agriculture, Resident of Naduvina Halli, Taluk & District: Gulbarga.

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… APPELLANT

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(Shri D.S. Patil & Shri S.M. Patil, Advocates)

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AND:

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The State of Karnataka By Faratabad Police Station Represented by its State through Public Prosecutor High Court of Karnataka, Gulbarga.

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… RESPONDENT

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(Shri K.R. Keshavamurthy, State Public Prosecutor)

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This Criminal Appeal is filed Under Section 374 (2) of Code of Criminal Procedure, 1973, praying to set aside the judgment order of conviction and sentence dated 04.11.2010 passed in Sessions Case No.194/2008 on the file of the I Additional District and Sessions Judge at Gulbarga convicting the appellants/accused Nos. 1 to 15 for the offences punishable under Sections 143, 147, 148, 447 and 302 read with Section 149 of Indian Penal Code and the appellants/accused Nos.1 to 15 are ordered to undergo simple imprisonment for a period of six months to pay fine of Rs.500/- each. In default, they shall undergo S.I. for a period of one month for the offences punishable under Sections 143, 147 and 148 of Indian Penal

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Code. Further, the appellants/accused No.1 to 15 are ordered to undergo simple imprisonment for a period of one year and to pay fine of Rs.1,000/- each. In default, they shall undergo simple imprisonment for a period of three months for the offence punishable under Section 447 of Indian penal Code. Further, the appellants/accused Nos.1 to 15 are ordered to undergo life imprisonment and to pay fine of Rs.5,000/- each. In default, they shall undergo simple imprisonment for a period of one year of the offence punishable under Section 302 of Indian Penal Code.

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CRIMINAL APPEAL No.3503/2011:

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BETWEEN:

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Naganna S/o Hanumantappa Shahapur Age: 55 years, Occupation: Agriculture,

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Manjunath S/o Naganna Shahapur Age: 23 years, Occupation: Agriculture,

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Both are Resident of Naduvina Halli, Taluk & District: Gulbarga.

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Nagappa S/o Nagappa Bellad Age: 45 years, Occupation: Agriculture, Resident of Sharana Nagar Shahabad.

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Tippanna S/o Nagappa Bellad Age: 46 years, Occupation: Agriculture, Resident of Sharana Nagar Shahabad.

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… APPELLANTS

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(Shri Ravi B. Naik, Senior Advocate for Shri R.K. Hiremath, Shri Chaitanya Kumar Shri Sanjay Kulkarni, Smt. Vijetha R. Naik,

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& Smt. Mahadevi S. Patil, Advocates)

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AND:

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The State of Karnataka Through Farhatabad Police Station Represented by State Public Prosecutor High Court of Karnataka, Circuit Bench at Gulbarga,

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… RESPONDENT

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(Shri K.R. Keshavamurthy, State Public Prosecutor)

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This Criminal Appeal is filed Under Section 374 (2) of Code of Criminal Procedure, 1973, praying to set aside the judgment dated 04.11.2010 passed in Sessions Case No.194/2008 on the file of the I Additional District and Sessions Judge at Gulbarga convicting the appellants/accused for the offences punishable under Sections 143, 147, 148, 447 and 302 read with Section 149 of Indian Penal Code and the appellants/accused No.1 to 15 are convicted for the offence under Sections 143, 147 and 148 and ordered to undergo simple imprisonment for a period of six months and to pay fine of Rs.500/- each, on each of the offence and in default they shall undergo simple imprisonment for a period of one month. Further, the appellants/accused Nos.1 to 15 are convicted for the offence under Section 447 of Indian Penal Code and ordered to undergo simple imprisonment for a period of one year and to pay fine of Rs.1,000/- each. In default they shall undergo simple imprisonment for a period of three months. Further appellants/accused Nos.1 to 15 are convicted for the offence under Section 302 of Indian Penal Code and ordered to undergo life imprisonment and to pay fine of Rs.5,000/- each. In default

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they shall undergo simple imprisonment for a period of one year.

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These appeals coming on for Hearing this day, the Court delivered the following:

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JUDGMENT

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These appeals are heard and disposed of by this common

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judgment. Heard the learned Senior Advocate Shri Ravi B. Naik, appearing for the counsel for the appellants in Criminal Appeal No.3505/2011 filed on behalf of accused Nos.1 to 6, 10 to 13 who has lead the arguments in these appeals. The appeal in Criminal Appeal No.3508/2011 is filed on behalf of accused No.9 and the appeal in Criminal Appeal No.3503/2011 is filed on behalf of accused Nos.7, 8, 14 and 15.

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The appellants seek to challenge the conviction and sentence whereby they are convicted and sentenced to undergo life imprisonment for the offence punishable under Section 302 of the Indian Penal Code, 1860 apart from other punishments

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imposed for the offences punishable under Sections 143, 147, 148 and 447 of the Indian Penal Code, 1860. Accused Nos.16 and 17 have been acquitted.

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The facts of the case as projected by the prosecution were as follows:

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As per the complaint dated 06.04.2008 it is stated that the complainant had four brothers, of whom he was the eldest, and three years prior to the complaint they had started residing separately. About three months prior to the complaint one Ambalappa S/o Yankanna Shahapur was said to have been murdered and in connection with the said case the complainant’s son Eshwaradhya and also the complainant’s brother Basavaraj were taken into custody by the police and in this background the accused carried a deep animosity against

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the complainant and his family suspecting them of being instrumental in the murder of Ambalappa. It is further narrated that on the eve of Ugadi the complainant’s father Yellappa,

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complainant’s brother Kanthappa and his nephew Pandit together had gone to their land named “Karimari” for symbolic ploughing, as it was customary to do so on the eve of the Ugadi festival and to perform a ceremony whereby a lump of soil is over turned which in the vernacular is known as “Hente ettodu” and that they had commenced ploughing at about 10.00 a.m. Incidentally, the complainant and his relatives namely Shivaputra and Sharanappa also went for the same purpose for ploughing another neighbouring parcel of land, named “Burani” (It was customary to name parcels of land). At about 11.00 a.m. it was claimed that the complainant and others heard a hue and cry from the direction of the Karimari land and they had rushed to that area and are said to have seen accused No.1Yankappa assaulting Kanthappa with an axe on the head, accused No.2 Chanabasappa assaulting with a sword on the backside of his head, accused No.3 Sharanappa assaulting Kanthappa with an axe on his head, accused No.4 Eshappa assaulting Kanthappa with a sword on the head. When Yellappa tried to intervene,

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accused No.5 Bheemanna is said to have assaulted him with a jambia on the middle of his head. Accused No.6 Mahantappa is said to have assaulted Yellappa with a sword on the back of his head. Accused Nos.7 and 8 Naganna and Manjunath are said to have assaulted Yellappa on his back with sticks and when Pandith tried to protect him, accused No.9 Yankappa is said to have assaulted him on his head and accused No.10 Sanjunath is said to have assaulted him with a sword on the back of his head. Accused No.11 Doddappa is said to have assaulted with an axe on Pandit’s head and accused No.12 Babu is said to have assaulted him with an axe on the back of his head and accused No.13 Bheemanna is said to have assaulted him with an axe on Pandit’s head. Accused Nos.14 and 15 namely Nagappa S/o Bheemanna and Nagappa S/o Nagappa have stabbed him with knives and Tippanna had stabbed Kanthappa on his back. It was further alleged that with the assault so made by the accused, Yellappa, Kanthappa and Pandit were profusely bleeding and had collapsed and died on the spot. It is on these

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allegations that a complaint was lodged. After a thorough investigation and on the basis of the complaint, the police had a filed charge sheet against the accused for the offences punishable under several provisions of the Indian Penal Code including Section 302 IPC. The matter was thereafter committed to the Court of Sessions. The charges having been framed against the accused, they had pleaded not guilty and claimed to be tried. At the trial, the prosecution had examined 36 witnesses and had got marked several exhibits namely Exhibits P-1 to P-112 and material objects M.Os.1 to 41 were marked. On behalf of the accused, three witnesses were examined as DW-1 to DW-3 and document Exhibit D-1 was marked. Thereafter, on recording the statement of the accused under Section 313 of Code of Criminal Procedure, 1973, the Court below had framed the following points for consideration:

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1. Whether the prosecution proves the homicidal death of Yallappa, Kanthappa and Pandit?

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2. Whether the prosecution proves that on 06.04.2008 at about 11.00 a.m. at Naduvinahalli village within the jurisdiction of Farhatabd Police Station, due to previous enmity in connection of murder of Amalappa, the accused persons formed unlawful assembly in prosecution of their common object of committing the murder of deceased Kanthappa, Yellappa and Pandit and thereby committed an offence punishable under Section 143 of Indian Penal Code?

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3. Whether prosecution proves beyond all reasonable doubt that on the date, time and place the accused persons in prosecution of their common object were found holding deadly weapons like sword, Axe, Knife, Jambia and sticks and thereby committed an offence punishable under Sections 147 & 148 of Indian Penal Code?

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4. Whether the prosecution proves that on the above said date, time and place accused persons in prosecution of their common object formed unlawful assembly and have committed trespass by entering in to the land bearing

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Sy.No.9 with an intention to commit an offence and thereby committed an offence punishable under Section 447 R/w. Section 149 of Indian Penal Code?

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5. Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place the accused persons in prosecution of their common object by forming unlawful assembly accused No.1 assaulted Kanthappa with butt end of the axe on his head, accused No.2 assaulted with sword on his back, accused No.3 assaulted with axe on his back side of head accused No.4 assaulted with sword on his back side of neck, accused Nos.14 and 15 assaulted with knife on the back of Kanthappa and caused fatal injuries to him and thereby committed murder of Kanthappa and thereby committed an offence punishable under Section 302 R/w. Section 149 of Indian Penal Code?

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6. Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place the accused persons in prosecution of their common object formed unlawful assembly, when Yellappa Shahapur

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came to rescue his son Kanthappa at that time accused No.5 assaulted with jambiya on his head, accused No.6 assaulted with sword on his back side of neck, accused Nos.7 and 8 have assaulted with stick on his back and buttock and caused fatal injuries to him and caused death of Yellappa Shahapur and thereby committed an offence punishable under Section 302 R/w. Section 149 of Indian Penal Code?

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7. Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place the accused in prosecution of their common object formed unlawful assembly when Pandit Shahapur came to rescue the Yellappa Shahapur at that time accused No.9 assaulted him with axe on his head, accused No.10 assaulted with sword on his back portion of head and accused Nos.11 to 13 assaulted with axe on his head and caused fatal injuries and committed murder of Pandit Shahapur and thereby committed an offence punishable under Section 302 R/w. Section 149 of Indian Penal Code?

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8. Whether the prosecution proves beyond all reasonable doubt that on the above said, date time and place the accused Nos.16 and 17 knowing fully well that the accused Nos.3 to 6 committed murder of Kanthappa Shahapur, Yellappa Shahapur and Pandit Shahpaur, have concealed and gave shelter to them in their house till their arrest by the Investigating Officer from their house and thereby accused Nos.16 & 17 have committed the offence punishable under Section 212 of Indian Penal Code?

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The Court below has answered points No.1 to 7 in the affirmative and point No.8 in the negative. Thereafter had convicted and sentenced the accused as aforesaid, which is under challenge in the present appeals.

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The learned Senior Advocate Shri Ravi B. Naik, while taking this Court through the record would contend that the very case of the prosecution could not have been sustained on the basis of evidence that is tendered, when it is so ridden with

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inconsistencies. It is inexplicable that the Court below has found that the charges against the accused have been established beyond all reasonable doubt. Firstly, he would point out that the prosecution has relied on the eye-witness accounts of PW-1 to PW-3 in coming to the conclusion that the evidence of these three witnesses could be sustained and which was amply supported by the evidence of other relevant witnesses and the case of the prosecution had been made out. He would draw attention to the testimony of the three witnesses above mentioned, in great detail to highlight the circumstance that the testimony of the said witnesses could not have been accepted, for it could be demonstrated on the face of it, that it was unbelievable.

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In this regard he would firstly deal with the evidence of

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PW-1. PW-1 in his evidence, it is noticed, had stated that he was acquainted with the accused and that accused No.1 was in fact his cousin. His father and the father of the accused No.1

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were brothers and accused Nos.2 to 6 were the sons of accused No.7 while accused No.7 was the younger brother of accused No.8 and accused No.8 was the son of accused No.7 and accused Nos.9 and 10 were also cousins of the complainant. Accused No.11 was the brother-in-law of the accused No.1 and accused No.12 was the son-in-law of accused No.1. Accused Nos.13 to 15 were the brothers-in-law of accused No.1 and accused No.16 is another son-in-law of accused No.1 and accused No.17 was the father of accused No.16. Accused Nos.16 and 17 were residents of Dandagunda village. It was further stated by the said witness, who was the complainant, of having gone to the Burani land and that his father and his younger brother Kanthappa and son Pandith had been to Karimari land to plough on account of Ugadi festival and that the complainant along with two others had similarly gone to Burani land to symbolically plough the land and that they had left the house around 9.00 a.m. He had narrated that Karimari land and Burani land are separated by the land of Guralingappa

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Huttin. Further that at 11.00 a.m. when the complainant and others were on Burani land, they heard a cry namely ‘hodeerlay’ (“hit them”) and it is on hearing such a cry and the further commotion that they had gone to investigate and that they saw the deceased being attacked by the accused. They had hidden themselves behind a bush and continued to watch the assault being carried out by the accused. It was stated that accused Nos.1 to 15 had surrounded Yellappa, Kanthappa and Pandit and they were assaulting them with axes, swords, sticks and jambiya and also a knife while all the time crying “hodeerlay” “kadeerlay” (“cut them down”) and he further stated the manner in which each of the accused had assaulted the deceased on the several parts of their body as well as the weapons used by each of the accused.

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It was further stated that he saw his younger brother sustain severe injuries and the attempt on the part of his father trying to rescue Kanthappa and he being in turn assaulted by the

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accused as already stated in his complaint. So also his nephew who had tried to rescue his father also being attacked by the other accused and having caused injuries in the manner as stated in the complaint. He has also candidly stated that neither he nor Shivaputrappa and Sharanappa tried to intervene or rescue the deceased as they were stricken with fear since the accused were all fully armed with deadly weapons. It is after the three deceased fell to the ground that the accused had left the place along with their weapons and they immediately found that the injured persons had all died on the spot. It is thereafter that they had rushed back to the village raising a hue and cry. That except the complainant and two others there were none else present in and around the vicinity and therefore when the complainant went right up to the village, it is only then that other villagers enquired as to what had happened and he had narrated the incident. It is thereafter that the complainant, Sharanappa and Shivaputra had gone to the police station to lodge a complaint about the incident. It is the further statement

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of the complainant that at about 2.00 p.m. the police recorded his oral statement and obtained his left thumb mark on a paper which was identified as Ex.P-1 and that the police arrived at the place of incident and conducted the inquest panchanama and the spot panchanama. He has also narrated of the police having collected the blood stained mud and sample mud and also having seized incriminating material found on the spot such as the spectacles of his father, the cell phone of his younger brother, one umbrella, one wrist watch and two knives (possibly carried by the victims) and one blood stained barkolu, which is used by cart-man to drive their bullocks. He has also identified the material objects and identified the same as material objects as M.O.s-1 to 6 and 7 to 18, namely the clothes worn by the victims and the weapons in the commission of the offence. He has also stated as a fact that there were land disputes between the complainant’s family and the family of the accused as also regarding the murder case pertaining to Ambalappa in which the younger brother of the complainant and the son of the

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complainant had been arrested and the fact that the case was still pending.

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It was further elicited from the said witness in the crossexamination, that on the very day of the incident there was a palanquin procession of the Ambadevi deity in the village and that the procession had commenced around 8.00 or 8.30 am where the village deity was taken in a palanquin to the river and thereafter brought back to the village and that the procession would move throughout the village. Generally the entire village would participate at the procession though some land owners would also carry out symbolic ploughing as was the case of the complainant and the deceased. He had denied that the accused and other villagers had all participated in the procession but has admitted that one Jagu Arali Sahukar, Shivalinganagouda Achchatti, Mounesh Pujari had participated in the procession. He had admitted that the procession had returned to the temple around 10.00 a.m. after completion of the

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procession. He has stated that at about 11.00 a.m. other villagers were present in their agricultural lands on the way to Karimari land or Burani land. But after the incident, when he ran back towards the village, he did not find any of those villagers. He has spoken as to the extent of Karimari land being 20 acres, less 5 guntas, and that Yellappa was the owner of the entire extent. But has corrected himself to state that 8 acres had been sold to one Babu Rao and that the neighbouring land owners were not present. It was admitted that accused Nos.11 to 15 were permanent residents of Shahabad village and that they had come to Naduvinahalli village on account of the procession. But he has admitted that accused Nos.11 to 15 were working in Shahabad for about 10 years and that accused No.10 was eking out his livelihood at Gulbarga in a cassette shop. But however he has asserted that accused No.10 was present at the time of incident at Naduvinahalli village and has denied other suggestions of other accused not being present at the time of incident. He has further admitted that before going

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to the police station he had discussion along with PWs-2 and 3 about how the case was to be filed. He has clarified that he alone had entered the police station and narrated the incident and that PWs-2 and 3 were standing outside the police station and that their statements were not recorded. He has stated that he was under much anxiety and tension while lodging Ex.P-1 and therefore had mentioned Naganna S/o Bheemanna Bellad as also being present at the scene and having assaulted the deceased but has withdrawn the allegation in the further statement made.

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It is pointed out by the learned Senior Advocate that the evidence of PW-1 is reiterated almost verbatim by PWs-2 and PW-3, in so far as the manner in which the incident had unfolded and the manner in which each of the accused having attacked each particular deceased person and the weapon used and the various injuries caused to their different parts of the body with uncanny and precision detail which the learned

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Senior Advocate would submit is wholly unnatural and cannot be readily accepted.

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PW-2, it is pointed, has stated that the procession referred to above was between 8.30 a.m. and 1.30 p.m. He has further stated that when they returned to Burani land they had come across some villagers, but that he could not name them. It was also stated that the family members of PW-1 were not immediately informed about the incident. He has denied other suggestions made in the cross-examination. But he has confirmed the fact that he had accompanied PW-1 to the police station and that it was only PW-1 who went into the police station to lodge the complaint and that he along with PW-3 stood outside the police station. It was admitted that PW-3 was a permanent resident of Bankoor village and he was only visiting Naduvinahalli village to participate in the procession. In so far as the symbolic ploughing of the land and the “Hente ettodu” ceremony is concerned, he had stated that it would be

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completed within 15 to 20 minutes. He has denied that he has made improvements on his statement earlier in regard to, which of the accused had assaulted which of the deceased on which part of the body. He has spoken to the fact that the procession had returned to the village from the river at 8.30 a.m. and that he had participated in the procession and that complainant and PW-3 were also present in the procession. At about 10.00 a.m. when the procession had returned to the temple, they had left for the agricultural operations to Burani land which was about one kilometre from the village and by the time they reached Burani land, other land owners had finished their agricultural operations and had returned to their village. After the incident when they rushed back to village to inform others, he did not see anybody present.

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PW-3 has also confirmed the facts as stated and the admissions made by PWs-1 and 2 and identifies all the weapons

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and stand by his statement as to the manner in which the deceased were attacked by the accused.

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Firstly, it is pointed out by the learned Senior Advocate that the complainant has not stated in the complaint nor in his further statement and similarly PWs-2 and 3 have also not stated that all the three of them had stood behind a thorny bush and had watched the entire episode unfold. It is only in the evidence before the Court that an improvement is sought to be made as to there being a thorny bush, about 200 feet from the scene of crime and behind which they could hide themselves and had watched the entire event. It is pointed out by the learned Senior Advocate that there is no evidence of any thorny bush being there on the land in question. The Engineer who has been examined to speak to the sketch that was prepared of the spot, namely PW-27, has not mentioned any thorny bush. He would draw attention to the several photographs of the vicinity of the crime which is part of the record, to point out that the

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area is mostly composed of plains which is a well known fact and there are no hills and dales nor any thick vegetation. As could be seen from the photographs the surrounding area is plain land with some scattered vegetation at a distance. To establish that there was a thorny bush behind which PWs-1 to 3 could hide themselves and also to remain unseen and then witness the entire incident, particular reference to the bush with exact measurements from the place of occurrence and the said bush etc. was required to be placed on record. There is no such exercise carried out and there is no material placed on record to show that there was such a thorny bush in existence. In the absence of it, it cannot be readily believed that all the three witnesses were in a position to have observed the exact injuries caused to each of the deceased and to also recollect the particular weapon used by each of the accused and significantly to also state particular parts of the body on which injuries were caused by each of the accused. This is grossly unnatural and could not have been accepted by the Court below. The fact that

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there were 15 accused surrounding the three deceased persons and the manner in which all the 15 accused simultaneously are said to have attacked all the three deceased is also not capable of being envisioned, as such an exercise may be physically impossible. There is no attempt on the part of the prosecution to demonstrate as to how far each of the three dead bodies were lying on the ground to have been able to re-enact the scene in the manner as stated to have occurred by the three above said witnesses. The Court below has proceeded on the firm presumption that the three witnesses were actually present at the scene and has also been impressed by the fact that they were indeed eye-witnesses and hence their testimony should be accepted without question. This is a fallacy committed by the Court below in having accepted the evidence tendered by all the three witnesses, which on the face of it, cannot be readily accepted.

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He would further point out that, having regard to the particular injuries said to have been caused on the particular parts of the bodies of the deceased and the injuries having been caused by particular weapons would require to tally with the report of the medical practitioner as to the nature of injuries and the possible weapon that may have been used in causing such injuries. He would therefore call upon this Court to compare the particular injuries referred to by the witnesses as having been caused by the particular accused and the weapons used and compared with the injuries described by the medical practitioner and his opinion as to whether those injuries had been caused by those particular weapons. It would straight away be clear that there is total inconsistency. This would be a pointer to the manner in which the incident has taken place, the manner in which the injuries could have been caused and the particular weapons used. This has been completely overlooked by the trial Court in mechanically accepting the evidence of the said three witnesses.

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He would also highlight the fact that the ceremony of ploughing the land and turning the soil which according to the witnesses would take a few minutes should have kept them on the land from 10.00 a.m. onwards till 11.00 a.m. when they are said to have heard a hue and cry from the direction of Karimari land. The inconsistency as to the time taken in completing the procession and coming over to the land etc. is also not reconciled and the prosecution has no explanation for the same.

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Yet another oddity is the fact that apart from these witnesses, though PW-1 has stated that there were other land owners present in the vicinity, the other witnesses do not say so and it is also inconsistently stated by the witnesses who while returning to the village after the incident to inform other villagers, they had seen other villagers present, whereas it is denied by PWs-2 and 3. Therefore, if the evidence of PW-1 is to be accepted as to there being other persons in the vicinity, it was necessary for the prosecution to have examined those

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witnesses and they would have been material witnesses in supporting the case of the prosecution. Whereas the prosecution has chosen to examine only witnesses who are all closely related to the deceased which would be an indication that the accused are being sought to be implicated. Though several of the accused are from other villages who are all related by marriage and otherwise, they have all been implicated as if all of them carried a strong motive to commit the murder of the deceased. It is not in dispute that several accused were from other villages.

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The learned Senior Advocate would further point out that there is yet another infirmity that would go to the root of the matter and demonstrate that the witnesses were planted merely to implicate the accused and further the very institution of the complaint and the filing of the First Information Report having been inordinately delayed would also indicate that there has been much discussion and contemplation in the manner in

¶128

¶129

which the accused should be implicated as is seen from the record. The incident allegedly had taken place at about 11.00 a.m. The complaint is lodged at 2.00 p.m. and he having gone to the police station along with PWs-2 and 3 and the statements of PWs-2 and 3 not having been recorded at the police station, at that point of time, is again an oddity which is not sought to be explained by the prosecution.

¶130

Further, the police having recorded the complaint and having obtained a left thumb mark of the complainant, had come to the spot at about 3.20 p.m. and had completed the recording of the panchanama and other statements of PWs-2 and 3, it is also noticed that PWs-1 to 3 had gone to the police station and PW-1 had returned in the jeep with the police, but it is not known as to how PWs-2 and 3 would also return to the spot, for their statements to be recorded by the police at the spot. After having completed the recording of the panchanama, the complaint and the First Information Report are said to have

¶131

¶132

been despatched through PW-23 which had ultimately reached the Magistrate only at 10.30 p.m. Therefore the sequence of events would indicate that there is an inordinate, unexplained, delay in the First Information Report being registered and filed before the Magistrate, which is fatal to the case of the prosecution, especially in the backdrop of the contrived evidence that is tendered through the medium of evidence of PWs-1 to 3 who are claimed to be direct eye-witnesses to the incident.

¶133

The explanation offered by the Police constable, who had carried the First Information Report to the Court, was that there was no transportation available for him to proceed from the Police Station to the Magistrate’s residence and that he could get some mode of transport only late in the night and therefore, he was delayed. While at the same time, admitting that his superior had handed over the First Information Report at 6.30 p.m. These are circumstances which are highlighted by the

¶134

¶135

learned Senior Advocate, to demonstrate that the Trial Court ought to have proceeded with circumspection in having readily accepted the explanation for the delay in lodging the First Information Report, as also accepting the evidence of PWs.1 to 3 as being the evidence of direct eye witnesses, which has resulted in the court arriving at a finding of guilt against accused. If there is a close examination of the above circumstances, coupled with the unnatural nature of the testimony of the witnesses, it would be a fit case where the case of the prosecution ought to have been negated.

¶136

It is also pointed out that to also believe the evidence of PWs.1 to 3, it was significant that the existence of shrubs or bushes in the vicinity of the spot where the dead bodies were found to have been established with certainty. The Trial Court, while appreciating the evidence of PW.27, an Engineer, who had prepared the sketch, had noticed that the Engineer had visited the place of incident and after observing the spot shown

¶137

¶138

by the Investigating Officer, he had prepared a rough sketch and that was produced as Exhibit P.27. In the crossexamination, he had admitted that while preparing Exhibit P.27, he had not indicated the distance between the dead bodies which was very crucial in accepting the case of the prosecution that all the 15 accused had surrounded the deceased and thereafter had proceeded to assault them, which would have been better explained if the distance between the dead bodies was shown. He has also admitted that he had not measured the entire land.

¶139

He has further stated that he had not noticed whether there are any shrubs or bushes in the area. Therefore, in the absence of any evidence as to the manner in which the alleged offence has been committed by the accused, mere statement of the witnesses that all the 15 accused had surrounded the deceased and thereafter proceeded to attack him, could not be demonstrated without indicating as to where the dead bodies lay

¶140

¶141

after they were assaulted. The indication of any bushes in the vicinity, which was very crucial to further substantiate the case of the prosecution as to PWs.1 to 3 being direct witnesses ought to have been demonstrated to the satisfaction of the court. When admittedly, there has been no evidence tendered in this regard, the trial court readily having accepted that the witnesses were present and had watched the entire scene from behind the thorny bushes, is a fact, which has not been established and therefore, the court has committed a palpable error in accepting the circumstance as projected by the prosecution.

¶142

There was a photographer, PW.30, who has photographed the scene of crime and has been examined only to identify the photographs. No attempt has been made by the prosecution at least to elicit from him as to the distance at which the dead bodies were found on the scene of crime, which would further fortify the learned Senior Advocate’s argument

¶143

¶144

that the scene of crime has not been explained by any witnesses in a manner, to support the case of the prosecution, as stated by PWs.1,2 and 3.

¶145

Further, the Medical Practitioner, who had conducted the post-mortem examination of the dead bodies, it is pointed out, has admitted in his evidence that he had arrived at the scene at about 5p.m. and commenced the post-mortem examination of the dead bodies, one after another. Insofar as the dead body of Pandit, son of Kanthappa, was concerned, he had completed the post-mortem by 5.30p.m. and it was his statement that the rigor mortis was absent on the dead body and has found the following injuries:

¶146

“ (1) Cut wound on the back of the head (right side) 2 x 3 x ½ inches in size under line tissue damaged. Irregular in shape. Clotted blood seen.

¶147

(2) Cut wound one inch below the wound No.1 measuring 3 x 2 x 2 inches in size. Skull fracture seen. Brain tissue damaged. Clotted blood seen.

¶148

¶149

(3) Cut wound over the right shoulder joint 2 x 1 x 14 inches in irregular in shape. Clotted blood seen. Edges are sharp.”

¶150

Similarly, he is said to have commenced the post-mortem

¶151

examination of Kanthappa immediately thereafter and that rigor

¶152

mortis was absent on his body as well and has noticed the

¶153

following injuries:

¶154

“(1) Cut wound on the back of the head measuring 5 x 3 x ½ cm. in size, edges are clean, clotted blood seen.

¶155

(2) Cut wound 1 cm below the wound No.1, 3 x 2 x ½ cm. Edges are clean. Skull fracture seen. Clotted blood.

¶156

(3) Lacerated wound back of the abdomen measuring 3 x 2 x ½ inch in size, edges are clean. Clotted blood seen.”

¶157

After completion of the post-mortem of Kanthappa’s

¶158

dead body, he has commenced the post-mortem of the dead

¶159

body of Yallappa at 6.15p.m. and he is said to have completed

¶160

the same by 6.45p.m. He has noticed the following external injuries:

¶161

¶162

“(1) Cut wound on the back of the head 5 x 3 x 1 ½ cm in size edged are clean. Underline bone fractured. Brain tissue with clotted blood seen.

¶163

(2) Lacerated wound on the right elbow joint 3 x 2 cm in size clotted blood seen.”

¶164

The learned Senior advocate would point out that the area is a extremely hot region being in Gulbarga District and the offence had been committed in April and therefore, it was summer time and hence it can be safely presumed that the temperature was very high, in which event, according to Medical Jurisprudence and Toxicology by Dr.K.S.Narayan Reddy, III Edition, 2010, insofar as the duration of rigor mortis in India, is concerned, it lasts 24 to 48 hours in winter and 18 to 36 hours in summer. It lasts for 2 to 3 days in temperate regions. These times are variable because of many extrinsic and intrinsic factors. When rigor sets in early, it passes off quickly and vice versa. Therefore, the murder having been committed at 11a.m. and the post mortem having been conducted on the dead bodies between 5p.m. and 6.45p.m., on

¶165

¶166

the same day and the same having been conducted within 5 hours from the time of death, it is inexplicable that the rigor mortis did receded so early when in summer, it would last for 18 to 36 hours. Therefore, it is another infirmity, which has gone unexplained and which the court below has not found to be unusual.

¶167

It is suggested that the prosecution would have done well to have drawn further explanations from the Medical Practitioner, who had conducted the post-mortem, as regards this peculiarity, which is contrary to the established scientific facts as to the accession and recession of rigor mortis.

¶168

It is further pointed out that in the opinion furnished by the Medical Practitioner, he had indicated that the approximate time of death was 10 to 30 hours prior to his conducting the post mortem examination, which is again inconsistent with the time at which the post mortem had been conducted, after the death of the victims.

¶169

¶170

The Investigating Officer, who is examined as PW.34 had narrated the sequence of events. He had stated that at 2.15p.m., on 6.4.2008, he had received a telephone call from the Station House Officer, PW.33, about the murders having been committed and he had proceeded to the spot and had conducted inquest panchnama and handed over the dead bodies for post-mortem examination. Thereafter, he had instructed his subordinates to conduct panchanama of Kanthappa and Pandit. He had conducted the spot mahazar, after verifying the spot shown by the complainant and he had collected the samples of blood stained mud and other articles. He had also recorded the further statement of the complainant on the same day as well as the statements of other witnesses. He had then returned to the Police Station at Farhatabad and taken other measures. Thereafter, the accused having been arrested, the voluntary statements are said to have been recorded in the presence of panch witnesses and on their voluntary statements, recoveries were made and admissible portions of the voluntary statements

¶171

¶172

of accused nos.7 and 8 were marked separately and further investigation was said to have been handed over to the Deputy Superintendent of Police. He has been cross-examined at length. It is elicited that the distance between Farhatabad Police Station and Gulbarga is 20 kilometres. That he had taken the Medical Practitioner along with him to the place of incident and the present incident may have been the fall out of an earlier murder case. He had also stated that the distance between karimari land and burani land was about 200 feet and that he had not verified as to whether there was any land belonging to a third-party between burani and karimari lands, but he has stated that there were thorny bushes between the lands and that thorny bushes could be seen on the western side and southern side of the karimari land. He claims to have stayed in the place of incident between 3.15p.m. and 8 p.m.

¶173

¶174

PW.35, Deputy Superintendent of Police, who has conducted further investigation has spoken about the recoveries made on the basis of voluntary statements of the accused.

¶175

The learned Senior advocate would thus submit that apart from other formal witnesses, who were examined, the court below has proceeded to arrive at its finding on the several points framed for consideration on the basis of the evidence referred to hereinabove.

¶176

Insofar as point no.1 is concerned, there was a homicidal death of Kanthappa, Yellappa and Pandit was never in dispute and therefore the finding in the affirmative could not be faulted.

¶177

As regards point no.3, the court below has lumped together all the points namely, points no.2 to 7, in proceeding to arrive at its findings. It is noticed by the trial court that the entire case of the prosecution is based on the evidence of Pws.1 to 3 and it centers on the oral testimony of these witnesses

¶178

¶179

alone, coupled with the recoveries made and the arrest of the accused and the post-mortem reports as well and that the oral testimony of PWs.1 to 3 has inspired the confidence of the court and that the trial court does not disbelieve the oral testimony of PWs.1 to 3 and therefore, the case against the accused has been established. The trial court having held that in order to establish a case of murder, the prosecution was required to establish three ingredients, namely, motive, preparation and the commission of the offence. In this regard, the trial court has held that when the evidence of PWs.1 to 3 is appreciated, the evidence placed on record that the witnesses had proceeded to their land to symbolically plough the land on account of the day being the eve of Ugadi festival and the offence having been committed in their presence in the neighbouring land, and the sequence of events as narrated by them not having been impeached by the defence and since the witnesses had consistently spoken about the manner in which the murders were committed, there was no reason to disbelieve

¶180

¶181

the same and has proceeded to hold that the prosecution had established its case beyond all reasonable doubt.

¶182

While the trial court at Paragraph 163, has admitted that there were some contradictions to be found from the oral testimony of the said witnesses, but the discrepancy was not a serious discrepancy when their testimony was viewed cumulatively. And it is a settled principle that the testimony of an eye witness cannot be read in isolation with reference to any particular circumstance and it is always advisable to appreciate such evidence cumulatively and therefore has taken a pragmatic approach in accepting the testimony of three witnesses inspite of there being discrepancies, even according to the trial court. This, the learned Senior Advocate, would submit is at the cost of the accused, which is impermissible in law. Every flaw that is found in the case of the prosecution must be viewed seriously as it results in the accused being visited with a serious punishment, inspite of such lacunae,

¶183

¶184

which ought not to be lightly treated in proceeding to hold that the charges have been proved beyond all reasonable doubt.

¶185

The learned Senior Advocate would thus submit that if the evidence of PWs. 1 to 3 if viewed with greater scrutiny, it is then evident that the trial court was not justified in arriving at findings against the accused in the manner that it has and hence seeks the acquittal of the accused.

¶186

It is further contended by the learned Senior Advocate that it is significant that the panch witnesses, who were witnesses to the panchanama in respect of the weapons that were said to have been recovered, having turned hostile, it cannot be said that the prosecution had been able to establish the recovery of the said articles and there can be no reliance placed on such evidence in support of the case of the prosecution, namely, PWs.10 to 14, 18 and 19.

¶187

¶188

While the learned Special Public Prosecutor seeking to

¶189

justify the judgment of the trial court, goes to the extent of assigning his own reasons to support the same.

¶190

The learned Special Public Prosecutor would point out that the attempt on the part of the learned Senior Advocate appearing for the appellants to characterise the evidence of PWs.1 to 3 as being perplexing and contrived is unfortunate and he would submit that their evidence at a criminal trial is consistent and corroborative and when there is inaccurate version of the evidence, it could not be trashed as being contrived and tutored in order to implicate the accused.

¶191

Insofar as the homicidal deaths having been caused, there is no doubt. That the motive for the crime having been committed, which is also apparent by the admitted circumstance that the accused as well as the deceased were related to each other and were locked in a serious land dispute, which had also taken its toll, as evidenced by the First

¶192

¶193

Information Report pertaining to another murder case of Ambalappa, who was the brother of PW.1. Therefore, it was not necessary to look far for the motive behind the murder, for there was no other circumstance that was brought to light which could have caused the murders and the direct eye witness accounts of PWs.1 to 3, therefore, would clinch the case of the prosecution.

¶194

Insofar as the opinion of the Medical Practitioner being attacked as creating a doubt as to the time of death of the deceased as well as the injuries defined not being consistent with the injuries that may have been caused by particular weapons on the deceased, as stated by PWs.1 to 3 is to be viewed with pragmatism, for the reason that, even as suggested by the learned Senior Advocate, the entire episode would have lasted for less than a minute and when the crime is committed with such speed and when it is all over in a fleeting moment, the witnesses having been able to consistently state as to which

¶195

¶196

accused had attacked which of the deceased, cannot be stated to be contrived or false and if there is some inconsistency as regards the injuries caused and the injuries as defined by the Medical Practitioner, with reference to the weapons used, it ought not to be taken as being fatal to the case of the prosecution. Therefore, he would emphasize that the trial court having relied on the evidence of PWs.1 to 3 cannot be faulted and when there is direct evidence of the eye witnesses, there is nothing more for the prosecution to labour upon, to establish that the crime was committed in the fashion as projected.

¶197

The learned State Public Prosecutor would contend that insofar as the contention of the learned Senior Advocate that the panch witnesses having turned hostile, and not having supported the panchnama, was not material in the face of the circumstance that there was a Serological Report as to the blood found on the weapons being human blood and belonged to ‘O’ group and had even tallied with the blood group of the

¶198

¶199

deceased. And when there was also evidence of the Investigating Officer to the effect that these recoveries were made, he would place authorities in support of the contention that it would be sufficient to bring home the charge on the basis of the evidence of the Police Officers even in the absence of any support by the panch witnesses in respect of such recoveries. There is no warrant to reject or trash the evidence of the Police Officers merely because they are Police Officers. In this regard, he would draw attention to offences particularly, under the Narcotic Drugs and Psychotropic Substances Act, 1985, where the sole evidence would be that of Police Officers and the Courts have repeatedly held that such evidence could not be negated in bringing home the charges against the accused. On the same token of reasoning, even if the panch witnesses in the present case have resiled, it would be sufficient on the basis of other cogent material to hold in favour of the prosecution.

¶200

¶201

He would further emphasize that the evidence of PWs.1 to 3, 34, 35 and 36 has not been dented and in the absence of that evidence not having been disturbed, it could not be said that the prosecution had not made out a case and hence, he would seek that the judgment be confirmed.

¶202

6 In the light of the above contentions and on a careful perusal of the record, the circumstance that there was a homicidal death of the deceased is not controverted. What is however sought to be strongly attacked is the veracity of the testimony of PWs.1 to 3. It is not also in dispute that they are all related to the deceased.

¶203

The further contention that the complainant and two others had come to their land at about 10 a.m. and they were ploughing the land till about 11 a.m. and thereafter they heard cries from the karimari land, when they were on burani land and they had immediately rushed towards karamari land to see the accused having surrounded the three deceased and

¶204

¶205

assaulting them. They had, however, not tried to intervene, but hid themselves behind a bush at a distance of about 200 feet and had watched the entire episode and they had seen the accused leave the spot carrying their weapons, after all the accused victims had fallen down to the ground and on verifying that they were dead, they had rushed to the village to inform others about the incident. Thereafter, PWs. 1 to 3 had proceeded to the police station together to report the incident. It is only PW.1 who had entered the police station while PWs.2 and 3 had stood panchas and thereafter, along with the Police, PW.1 is said to have come to the spot in a jeep by about 3 p.m. and thereafter, the inquest panchnama has been recorded and further statements of the witnesses have also been recorded. The post-mortem has been conducted between 5 p.m. and 6.45 p.m. and it is on further investigation, the accused had been arrested and further steps had been taken.

¶206

¶207

Insofar as the actual incident itself is concerned, if all the 15 accused had surrounded the three victims, it would mean that there were 15 sets of eyes, which would have a 360º view of the area. In which event, the slightest movement outside the range of that spot could be seen by atleast one of the accused. And if on hearing the cries of the victims, if PWs.1, 2 and 3 had managed to come upon the scene even from a distance and had hid themselves behind the thorny bush, it would mean that they must have covered some open ground before they gained the shelter of the thorny bush, to be able to hide themselves and watch the accused. Therefore, the accused not having spotted the three witnesses, one of whom was aged 60 and one other was 45 and the third was in his late 20s. It could not be expected of at least two of those witnesses to move with any agility or speed. If the witnesses had passed through the open ground before hiding themselves behind the bush, it would have been noticed by atleast one of the accused. This circumstance is something which cannot be readily accepted.

¶208

¶209

As seen from the photographs and taking judicial notice of the terrain in Gulbarga district, it consists mostly of open plains, with scattered vegetation. From the photographs of the spot which is produced on record it is no different. Therefore, the claim of the PWs. 1,2 and 3 that they had come upon the scene from the neighbouring land and had managed to hide themselves behind the bushes without being seen, when there were 15 people and all of them would have been in a state of high tension, as they were assailants who were attacking people to murder them and would have been extremely alert and would have noticed the slightest movement at a distance even from the corner of their eyes and it is unbelievable that none of the accused had discovered the movements of PWs.1 to 3, before they reached the thorny bush, where they allegedly hid themselves, which is difficult to accept. Therefore, this is the first circumstance which strikes one as being odd in the witnesses being able to come to the spot in the fashion stated

¶210

¶211

and to have witnessed the entire scene in the manner that they have claimed.

¶212

This is further compounded by the fact that there is a clear omission in the case of the prosecution as to how PWs.1, 2 and 3 could witness the scene undetected and from a distance of 200 feet when there were so many accused present on the scene. However, it is only in the course of testimony of these three witnesses that this ‘thorny bush’, has been planted, in holding that it was possible for the witnesses to have witnessed

¶213

the entire scene after having attained their position behind the same.

¶214

Further, if the cover under which the said witnesses were witnessing the scene, completely hid them from the sight of the accused, it is unclear as to how all three of them had a clear view of the sequence, in which the act was committed. It is unimaginable that such injuries can be caused in slow motion and over a period of time. In the opinion of this bench, the

¶215

¶216

attack would have been swift and would have obviously commenced when the witnesses first heard the cry “Hodeerlay”, when they were on Burani land. The entire episode would have been completed in half a minute or less and therefore, for the entire scene to be recorded as if the witnesses were digitally recording the scene in their mind’s eye is difficult to accept and for each of the witnesses to state as to which accused had used what weapon to strike on the body of which accused, is an exercise which is unimaginable. Therefore, it is evident that the further circumstance, namely, that there is a long gap between the registration of the complaint and ultimately the First Information Report being placed before the Magistrate, would indicate that there was much deliberation as to who could possibly be made the accused and how they could be implicated and the fact that the entire family, including the sons-in-law and others from other villages have been implicated would indicate that it was out of sheer vengeance, that the case has been foisted against the accused.

¶217

¶218

Further, it is evident, if we notice the testimony of the witnesses, as to what injuries to which accused were caused, in comparison with the wounds and injuries defined by the Medical Practitioner, it becomes evident that their evidence is contrived and is not consistent with the actual injuries suffered by the deceased and therefore, the manner in which the attack is said to have taken place and the weapons used would not tally at all. For instance, it is stated in the complaint, which is on the statement of PW.1 and which is reiterated in his evidence as PW.1 and also seconded and endorsed by PWs.2 and 3 namely, that the accused had assaulted Kanthappa with an axe on his head; accused no.2 Channabasappa had assaulted Kanthappa with a sword on the back side of his head; accused no.3 Sharanappa had assaulted with an axe on the head of Kanthappa and accused no.4 had assaulted with a sword on the head of Kanthappa and to compare with the wounds described by the Medical Practitioner, which is extracted hereinabove, it would straight away be evident that there is mismatch and total

¶219

¶220

inconsistency and that it cannot be reconciled. Therefore, on the face of it, the trial court ought to have proceeded with extreme circumspection in having accepted the alleged eye witness accounts of PWs.1,2 and 3.

¶221

It is also necessary to accept the evidence of PWs.1,2 and 3 to correlate other circumstances, such as, the existence of any bush, behind which they could hide themselves and watch. There is no attempt to demonstrate that there was any such bush at the spot. As for instance, the Engineer, who had prepared the sketch of the spot, has categorically stated that he had not noticed any bush nor was it present to his mind to look for any bush in the area. Though there is some attempt on the part of the Circle Inspector of Police, PW.34, to state that there were thorny bushes on the southern side of karimari land, he has not stated the distance at which the said thorny bushes existed and whether there was any possibility of providing cover, from where PWs. 1 and 2 and 3 could hide and watch

¶222

¶223

the entire scene. In the absence of any such evidence, it has not been established that the testimony of the witnesses, in the manner that they have stated to have witnessed the episode, could be readily accepted.

¶224

One other factor which requires to be noticed is that it is the case of the prosecution that all the 15 accused surrounded the deceased victims, which means, that they were all in a circle formation around the three deceased and it is physically impossible for all the 15 people to attack the three at the same time and not to harm themselves in the process, for they were wielding deadly weapons and it would be physically impossible for the weapons to be wielded with any force unless there was distance maintained between each other and there is no attempt made to measure the distance between the dead bodies as they lay prone after being murdered. In the absence of this crucial evidence, it could not then be surmised and accepted that the deceased victims had been surrounded by all the 15 accused and

¶225

¶226

all the 15 accused proceeded to assault the deceased at the same time, in the manner as stated by the witnesses. Therefore, this very manner in which the murder has been committed also throws serious doubt as to whether it can be done in that fashion. Though, it may have been possible for some of the accused to attack each of the victims. Therefore, this crucial piece of evidence is missing and hence these are the serious lacunae, which have been overlooked by the court below in proceeding to accept the oral testimony of PWs. 1 to 3.

¶227

Further, the Medical Practitioner’s evidence raises a serious doubt, in that, a contrary opinion is expressed by the authorities, where, insofar as rigor mortis with specific reference to India, it is stated that in summer, it would usually last for 18 to 36 hours, which is not capable of being reconciled with the fact that the post mortem, which was conducted about 6 hours after the death, the Medical Practitioner having noted that the death may have occurred 10

¶228

¶229

to 30 hours would be a mean duration of 20 hours from the time of death. This is inexplicable and therefore, the time of death also is rendered doubtful. It certainly would prepone the time of commission of the offence. This has also been lost to the mind of the court below.

¶230

It is also seen from the authority, namely, Medical Jurisprudence and Toxicology by Dr.K.S.Narayan Reddy, that onset is rapid due to heat, because of the increased break down of Adenosine Triphosphate (ATP), but the duration is short. If the body is in an extremely hot environment and decomposition begins, rigor mortis may disappear in 12 hours after death. It may persist for 3 to 4 days in refrigerated conditions.

¶231

In any event, the opinion of the Medical Practitioner throws up further doubt as to the time of death.

¶232

Further, the recovery of weapons on the basis of voluntary statements and the same being blood stained and the

¶233

¶234

blood having been determined as human blood and that the blood group tallied with the blood group of the deceased, would hardly advance the case of the prosecution. There is no evidence that the blood group of any of the deceased was known. The blood stains were determined as that of blood group ‘O’. There was no other blood group. It is not the case of the prosecution that the blood group of all the three deceased was blood group ‘O’.

¶235

Therefore, the total reliance placed on the testimony of PWs.1 to 3, in accepting that the offence had been committed in a particular fashion, involving particular accused, is erroneous and cannot be sustained. Though there may have been a direct motive for the commission of the murder, to proceed on that basis and to hold that all the accused have indeed committed the crime, leads to a miscarriage of justice, which is impermissible. Therefore, it can be safely said that the

¶236

¶237

prosecution has not established the case beyond all reasonable doubt.

¶238

Consequently, the appeals succeed. The judgement of the court below is set aside. The accused are acquitted and shall be set at liberty forthwith.

¶239

The operative portion of the judgment to be transmitted to the Jail Superintendent.

¶240

Sd/JUDGE

¶241

Sd/JUDGE

¶242

swk/nv

Yenkanna @ Yenkappa S/O Hanamantha Shahapur Ors. v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Yenkanna @ Yenkappa S/O Hanamantha Shahapur Ors. v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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