Mallappa vs State Of Karnataka

Aniruddha Bose, J

The appellant (Mallappa) was charged with having committed fratricide, murder of his brother Earappa, little beyond the midnight hours of 19thÂ‐

20th April 1999. His son, Veeresh was the coÂaccused. The Trial Court acquitted both of them from the charges under Section 302 read with Section

34 of the Indian Penal Code (the Code, in short). In appeal against the judgment of acquittal by the State of Karnataka, the High Court of Karnataka

set aside the decision of the Trial Court in relation to Mallappa and convicted him of the offence punishable under Section 302 of the Code. Sentence

of life imprisonment was awarded against him. The present appeal is by Mallappa against the judgment of conviction and order of sentence passed on

11th June 2008. The prosecution case, which was accepted by the High Court, was that the appellant (described as A1 and his son Veerappa as A2 in

the trial) had assaulted the deceased Earappa with a club while the latter was sleeping in the “angala†(frontyard) of his house in Sidrampur

village, Taluk Sindhanur within the State of Karnataka.

There was previous dispute between the appellant and the deceased victim over certain immovable properties and sharing of canal water, which

were projected as the motive of the crime by the prosecution. It appears from the evidence of the prosecution witnesses that the deceased victim was

sleeping in the frontyard of his house at a little distance from his wife, Bassamma (P.W. 5) with two of his daughters when the assault took place. On

hearing the screams of his wife and daughter, Shivarayappa (P.W.3), another brother of the deceased woke up and saw the two accused persons

running away. As per evidence of P.W.3, he was sleeping at that point of time outside his house in the ‘angala’ about 10’ away from the

location where the deceased was sleeping. We shall describe this location as the place of occurrence (PO). On reaching the PO where the deceased

was sleeping, he found the latter bleeding from his nose and ear. Then, he rushed to the house of P.W.1, his sister’s husband, whose name is also

Earappa. From the P.W.1’s house, he went and fetched the local doctor, Mallikarjuna (P.W.4) to the PO. On examining the deceased, he

declared him dead. Thereafter, P.W.1, P.W.3 and one Bassappa arranged for a jeep and went to the Sindhnur police station for reporting the incident.

From the deposition of Sanna Hassan Sab (P.W.8), who recorded the complaint as P.S.I at that police station on the basis of which the F.I.R. was

registered, it transpires that they had reached the police station at about 4 A.M. on 20th April, 1999.

Evidence of the autopsy surgeon, Dr. Venketesh Y. (PWÂ 7) is that death of Earappa was caused due to intraÂcranial haemorrhage and shock.

He found an external injury, being a lacerated wound on right occipital protuberance 3 x ½’’. His opinion, as it appears from his

examinationÂinÂchief was that such injury could be caused by an iron rod or lathi. In cross examination, however, he stated that if a person fell

downwards on a hard surface, such injury was possible.

The prosecution case was built up primarily on the evidence of PWÂ5, who was presented as an eyeÂwitness and the depositions PWÂ3 and

Bhogappa (PWÂ6), both of whom gave evidence as post occurrence witnesses. They claimed to have had seen the appellant running away, and the

location they saw the appellant was in front of the house of one Jeeral Devendrappa. P.W.5 had stated in her examinationÂinÂchief that she had

seen A1 assaulting on the head of her deceased husband with a club. In her crossÂexamination, however she gave a different version, of seeing the

accused person near the house of Devendrappa. We shall deal with her evidence in greater detail in the succeeding paragraph. The other factor by

which the prosecution sought to establish their case against the appellant was recovery of the weapon of assault the club from the house of the

accused. PWÂ8, who conducted the inquest, in his deposition stated that he had seized a small piece of wooden club from the spot of occurrence

along with certain other materials  barkha, pillow (spelled pillo in the deposition as recorded), jamkhana, blood stained mud and sample mud. This

was reflected in the Mahazar. The club has been made Material Object (M.O.) 6 whereas the small wooden piece was marked M.O.10.

Basamma (PWÂ5), in her examinationÂinÂchief had stated that after midnight of 19th Â20th April, 1999, she had heard a sound which she

described as ‘DHUP’. This appears to be a phonetic description of what may be called a thudding sound. She also stated in her examinationÂ‐

inÂchief that Honnappa and Nagaraja, their sons, were sleeping with her husband. On hearing such sound, she shouted and on opening her eyes she

saw the appellant Mallappa with a club assaulting on the head of her husband with Veerappa (AÂ2) was standing behind him. In her crossÂ‐

examination, she stated that Honnappa was not sleeping with them on that day, as he was in Sindhnur. Her daughters Earamma and Gangamma were

sleeping with them. As regards witnessing the accused persons, her varied version in her crossÂexamination was that by the time she had woken up

and saw her husband, injuries had been caused. She saw the accused running near the house of Devendrappa. Prosecution sought to establish the club

as the weapon of assault by matching the wooden piece seized at the house of the appellant with a broken piece the police claimed to have had seized

from the spot of crime.

PWÂ​2Â​Srinivas, who was adduced as witness to the seizure of items around the time of inquest in his examinationÂ​ inÂ​chief stated:Â​

“…..From the spot, the police collected bloodÂstained mud, Barkha, Pillo and one Jamkhana, and seized the same. One Virupanna signed the spot

mahazar alongwith me. Ex. P.2 is the spot mahazar. It bears my signature. M.O.1 is Barkha, M.O.2 is Pillo & M.O.3 is the Jamkhana. M.O.4 is

bloodÂ​stained mud. M.O.5 is sample mud which also collected at the spot.

Next from the house of A.1 the police by going near the ovan in the kitchen seized a club consisting of bloodÂstained. Ex. P.3 is club seizure

mahazar. It bears my signature. M.O.6 is the club that was seized from the house of A.1. At that time in the house A.2 son of A.1 was present. The

other women folk were also present. Ex.P.3 is club seizure mahazar. It bears my signature. M.O.6 is the club that was seized from the house of A.1.

At that time in the house A.2 son of A.1 was present. The other women folk were also present.â€​

(quoted verbatim)

Further, in course of his crossÂ​examination, he had also stated:Â​

“When I went there P.S.I. told me at the spot panchanama is made, where deceased died and thereby I signed it and I do not know for what

purpose that mahazar was made. At the spot three mahazars were conducted. I cannot say for what purpose all the three panchanamas were

conducted at that place. At the spot itself I signed all the panchanamas. Police had already written those panchanamas. I do not know what is written

in all those panchanamas.â€​

(quoted verbatim)

In his crossÂ​examination he had also specifically stated that the club was not broken.

The Trial Court found that PWÂ3 and PWÂ5 had improved the prosecution case, which was not stated before the police. The Trial Judge found

the evidences of PWÂ3 and PWÂ5 to be exaggerated and deviated from the prosecution story. He was not convinced by the prosecution story of

assault and murder of the deceased victim Earappa and acquitted both the accused persons. Other factors behind the Trial Court’s judgment was

that Devendrappa’s house was not visible from the place of occurrence. Moreover, the weapon of assault was not produced before the autopsy

surgeon and the same was also not sent to any expert to obtain opinion as to whether M.O.Â​6 and M.O.Â​10 matched to form the same club.

In appeal by the State, it was held by the High Court:Â​

“9. The evidence of PW3 and PW6 disclose that the houses of Hussainamma and Jeeral Devendrappa are side by side and the said houses are not

visible from their house. Whether the house of Jeeral Devendrappa is visible by the house of PW3 and PW6 is not of importance and relevance. The

said evidence cannot be interpreted to the effect that the house of Jeeral Devendrapa is not visible from the house of PW5. Therefore, there is no

reason to reject the testimony of PW5 which is to the effect that she was able to see the accused persons going away near the house of Jeeral

Devendrappa.

The prosecution has established the motive for the commission of the offence. The evidence of PW5 is fully credible. It may be that the evidence

of PW5 shows that 2 blows were dealt. There is only one lacerated head injury. It could be possible that both the blows must have been dealt at the

same site in which event there could be only one injury.

PW5 states that it was A1 who dealt blow and ran away from the scene. She states that A2 also ran away. PW2 does not attribute any overt acts

to A2. The act of A2 running away cannot be interpreted to attribute sharing of common intention on the part of A2. The evidence of PW5 at the best

establish the guilt of A1.

In that view of the matter, the order of acquittal recorded by the trial Court against A1 is set aside. The order of acquittal granted to A2 by the

trial Court is confirmed.â€​

(quoted verbatim)

In our opinion, however, the evidence of PWÂ5 cannot be accepted in full. There are contradictions in PWÂ5’s deposition as regards the

P.W.5 having seen Mallappa at the spot of occurrence. She stated in her crossÂexamination, which we have referred to earlier, that by the time she

saw the accused persons, they were in front of the house of Devendrappa. That is the evidence of PWÂ3 as also PWÂ6. We can ignore the

contradictions in her evidence concerning presence of Honappa at the PO on the night of occurrence of the incident as the same not having any

material impact on the case. But her contradictory statements as regards when and where she saw the appellant and as to whether she saw him

committing the act of assault is of significance. In her examination in chief, she deposed that when she opened her eyes on hearing the sound

“dhupâ€, she saw A1 (i.e. the appellant) with a club assaulting on the head of her husband, whereas A2 (Veerappa) was standing beside him. But

as we have already observed earlier, she stated in her cross Âexamination that by the time she woke up, injury had been caused. She claimed to have

had seen the accused in front of Devendrappa’s house. This part of her deposition in her crossÂexamination is otherwise compatible with rest of

her statements made in cross examination. In this perspective, only one conclusion is possible and that is she was not a witness to actual act of

assault. She is the widow of the deceased victim and deserves to be considered with an element of compassion. But as a witness, she does not inspire

confidence.

The Trial Court had found, dealing with evidence of P.W.5 that from her house, the houses of Hussainamma and Devendrappa are invisible. On

that basis, it held, referring to the evidences of PWÂ​3 and PWÂ​5:Â​

“As observed supra, PW5 admits, that from her house, the house of Hussainamma and Devendrappa are invisible, thereby their statements in

respect to watching the accused running away from that portion, is not true.â€​

(quoted verbatim)

This was a finding of fact about possible visibility of the appellant, who, as per prosecution version was running away alongwith his accused son.

The High Court, however, gave finding on this count in paragraph 9 of its judgment, which has been quoted earlier. We do not think that the High

Court in the judgment under appeal was right in dismissing the said finding of fact based on evidence being “not of importance†and

“irrelevantâ€. We cannot believe the account of P.W.5 having been eyewitness of the incident because of her contradictory statements.

Involvement of the appellant, as per prosecution version, appears from him being seen while running away from the place of occurrence by the

aforesaid three witnesses at the same location, apart from discovery of the club. Evidence on whether that location is visible from the spots the PW

Nos.3 and 6 were at the material point of time cannot be discarded as being irrelevant.

We have already reproduced the part of the deposition of Srinivas (PWÂ2), the seizure witness in which he has stated that the club was not

broken. PWÂ1 has also deposed on spot panchanama made by the police on the morning of 20th April, 1999 from the place of occurrence. He also

does not speak of seizure of the broken piece of the club. These two prosecution witnesses do not support the statement made by PWÂ8, the inquest

officer in his examination that the latter had seized a small piece of wooden club. The autopsy surgeon Dr. Venkatesh Y (PWÂ7) was not shown that

club. It does not transpire so from his deposition. Club is a common implement which can be found at random in rural households of this country and in

absence of any cogent evidence demonstrating that the club seized was used to assault the deceased, the prosecution story seeking to establish

commission of the offence by circumstantial evidence of discovery of the weapon of assault fails.

Even if the prosecution version that the PWÂ3, PWÂ5 and PWÂ6 could and did see the appellant running in front of Devendrappa’s house

from the respective positions they were in at the time of occurrence of the incident was accepted, the evidence we would have been left with would

have been two accused persons being seen running away. That would have been too thin piece of evidence to convict someone under Section 302 of

the Code, applying the principle of res gestae. The first Court of facts on appreciation of evidence had acquitted the appellant. We do not find any

major lacuna in its reasoning which would have warranted interference by the Appeal Court for reversing such finding into that of guilt.

For these reasons, we set aside the judgment dated 11th June, 2008 of the High Court of Karnataka delivered in Criminal Appeal No.1232 of 2001

convicting the appellant and the consequential order of sentence. We sustain the judgment of acquittal of Mallappa (A1) by the Trial Court. As we

find from the records that the sentence of the appellant was suspended by an order of this Court passed on 29th January, 2016 and prayer for bail of

the appellant was granted, we direct discharge of the bail bonds.

The appeal is allowed in the above terms. Pending application(s), if any, shall stand disposed of.