IMPORTANT POINT
Delay in lodging FIR will not be fatal if the ocular version of eye-witnesses was reliable and trustworthy.

Headnote:Indian Penal Code, 1860 - Sections 143, 148 & 326 r/w 149 - Five appellants amongst eighteen accused were tried for offences u/s. 143, 147, 148, 324 & 302/149 and all accused were acquitted by trial Court - Trial Court found delay in lodging FIR and contradictions and improvements in evidence of eye-injured witnesses - High Court in State appeal found prosecution case acceptable and convicted appellants and other accused u/s. 143, 147 & 326/149 - Appeal - Deceased with P.W. 1, P.W. 3 & P.W. 10 was returning to village on 4-11-1986 at about 6.30 PM and appellants assaulted them in front of house of A1 - Witnesses and deceased were injured and deceased died in hospital after three months in hospital - Cause of death was respiratory failure as a result of consolidation of lungs secondary to fracture of thigh bone - Evidence of injured witnesses was trustworthy and reliable - Discrepancies and contradictions were minor and might be by reason that their cross-examination was done after long gap and their examination was recorded after almost 10 years - Their evidence was rightly appreciated and accepted by High Court - FIR was lodged on next day at 11 AM but explanation that injured were frightened of accused and police station was at 15 km. distance - Delay in lodging FIR would not be fatal if evidence of eye-witnesses was reliable and trustworthy - Evidence proved participation of appellants A1 to A5 but did not prove charge against others - Conviction of A1 to A5 was liable to be upheld - Since incident was 20 years old, sentence of appellants reduced from 5 years imprisonment to one year imprisonment and fine reduced from Rs. 10,000/- to Rs. 5000/- each - Fine if realised to be paid to two injured and legal heirs of deceased.
       Held : We have independently scrutinized the evidence of the material witnesses in the teeth of the rival contentions of the parties. On reprisal of the evidence of the injured witnesses Rajanna (P.W.1) and Kenchaiah (P.W.3) as also the evidence of eye-witness Moodalagiri (P.W.2), it is clear that the evidence on record fully establishes the case of the prosecution against Venkategowda (A-1), Muddegowda (A-2), Shivanna (A-3), Govindappa (A-4) and Govindaiah (A-5) although, there were certain discrepancies in the testimony of the injured witnesses and eye-witness in regard to the weapons of offence individually used by (A-1), (A-2), (A-3), (A-4) and (A-5) for inflicting injuries on the person of each of the injured witnesses (P.W.1) and (P.W.3) as also on the person of the deceased Venkatesh. The discrepancies, as pointed out by the learned counsel for the appellants, are minor and insignificant. The witnesses were examined in the court after a gap of almost ten years. The injured witnesses were cross-examined not on the very same day when their examinations-in-chief was conducted, but their evidence was recorded after a long gap of time. On examination of the evidence of Rajanna (P.W.1), we find that he was examined-in-chief on 26.11.1996, but his cross-examination continued and he was cross-examined again on 27.11.1997. Likewise, Kenchaiah (P.W.3) was examined-in-chief on 28.11.1996, but his cross-examination took place on 28.4.1997. Further evidence on record would show that the injured witnesses had been subjected to searching lengthy cross-examination and questions numbering more than hundred were being put to each witness. In such type of cross-examination by the defence, some improvements, contradictions, and omissions are bound to occur in their evidence, but they are not of serious nature and they cannot be treated as vital and significant contradictions so as to disbelieve and discard the substratum of the prosecution case. The evidence of the injured witnesses Rajanna (P.W.1), Kenchaiah (P.W.3) and eye-witness Moodalagiri (P.W.2) has been rightly appreciated and accepted by the High Court and we find no cogent and sound reason to differ from the reasoning and finding recorded by the High Court against Venkategowda (A-1), Muddegowda (A-2), Shivanna (A-3), Govindappa (A-4) and Govindaiah (A-5) holding them guilty of the offences. There is no substance in the argument of the learned senior counsel for the appellants that the evidence of Rajanna (P.W.1), Moodalagiri (P.W.2) and Kenchaiah (P.W.3) should be levelled as the evidence of the interested witnesses. There was no basis for Rajanna (P.W.1), Moodalagiri (P.W.2) and Kenchaiah (P.W.3) to falsely implicate the appellants Venkategowda (A-1), Muddegowda (A-2), Shivanna (A-3), Govindappa (A-4) and Govindaiah (A-5) in the present case. On the other hand, we find that the evidence of the injured and eye-witnesses is quite natural, convincing and trust-worthy.(Para 13)
       The injured witnesses have explained the delay in lodging the FIR and it was on the following day of the occurrence that Rajanna (P.W.1) along with Venkatappa (P.W.7) went to the Kudur Police Station, which is about 15 kms. from the place of occurrence and made the complaint to the police official. Having regard to the injuries inflicted on the body of the deceased as also on the person of the injured witnesses, it was but natural for Rajanna (P.W.1) and other witnesses not to venture to go straight to the Police Station and lodge the complaint with the police on the day of the occurrence and the fact that the witnesses left the deceased Venkatesh on the scene of occurrence itself would indicate the gravity of the situation. It is settled law that the delay in lodging the FIR will not be fatal in every case if the ocular version of the eye-witnesses is reliable and trustworthy. The prosecution has explained the reason of the delay and as the testimony of the injured witnesses was found credible by the High Court, the delay in lodging of the complaint and FIR will not be fatal to the prosecution case.(Para 16)
       Considering the background facts, namely, the incident took place on 4.11.1986, the nature of the injuries sustained by the deceased and the witnesses, the fact that Venkategowda (A-1), Muddegowda (A-2), Shivanna (A-3), Govindappa (A-4) and Govindaiah (A-5) have suffered physically, mentally and financially in prosecuting the legal battle in different courts for the past about 20 years, while maintaining their conviction under Section 326, IPC, read with Section 149, IPC, it might be appropriate to reduce the sentence of Venkategowda (A-1), Muddegowda (A-2), Shivanna (A-3), Govindappa (A-4) and Govindaiah (A-5) from five years rigorous imprisonment to one year rigorous imprisonment each and also to pay a fine of Rs. 5,000/- each instead of Rs. 10,000/- each as imposed by the High Court. In default of payment of fine, Venkategowda (A-1), Muddegowda (A-2), Shivanna (A-3), Govindappa (A-4) and Govindaiah (A-5) each shall further undergo 3 months rigorous imprisonment. Out of the amount of fine, if realized, a sum of Rs. 5,000/- each shall be paid to Rajanna (P.W.1) and Kenchaiah (P.W.3) injured witnesses and a sum of Rs.10,000/- shall be paid as compensation to Venkatappa (P.W.7) - the father or the legal heirs of the deceased Venkatesh. (Para 18)

JUDGMENT

Lokeshwar Singh Panta, J. - This appeal is preferred by Venkategowda (A-1), Muddegowda (A-2), Shivanna (A-3), Govindappa (A-4), Govindaiah (A-5), Venkataramanaiah (A-6), Rajashekaraiah (A-7), Lakkegowda (A-8), Rama (A-9), Shivanna (A-10), Mahadeva (A-11), Ganghahanumaiah (A-12), Singraiah (A-13), Annaiah (A-14), Bettegowda (A-15), Chikkanna (A-16), Govindaiah (A-17), Rama (A-18), appellants herein, questioning the correctness of the final judgment and order dated 7.3.2006 made in Criminal Appeal No. 161/2000 on the file of the High Court of Karnataka at Bangalore. The appellants took their trial before the Additional District and Sessions Judge, Bangalore Rural District, Bangalore, in S.C. No. 97 of 1989 for offences under Sections 143, 147, 148, 324, 302 read with Section 149 of the Indian Penal Code (for short "the IPC") on the allegations that all of them formed themselves into an unlawful assembly to cause the death of Venkatesh, the deceased herein, and in prosecution of the same, they murdered the deceased and caused injuries to Rajanna (P.W.1) and Kenchaiah (P.W.3).

2. The trial court, after examining the prosecution evidence, observed that there was delay in lodging the FIR and noticing the contradictions and improvements between the ocular evidence of Rajanna (P.W.1), Moodalagiri (P.W.2), Kenchaiah (P.W.-3) and Lakshmana (P.W. 10) came to the conclusion that the prosecution had not established its case against the accused and consequently acquitted all the accused persons vide judgment and order dated 15.04.1999.

3. In an appeal filed against the said judgment of acquittal by the State before the High Court of Karnataka, the High Court, accepting the evidence of one injured witness and two eye-witnesses coupled with the medical evidence of the doctors, found all the appellants guilty of the offences under Sections 143, 148 and 326 IPC read with Section 149 IPC and sentenced each one of the appellants to undergo imprisonment for a period of five years and to pay a fine of Rs.10,000/- each and in default of payment of fine to undergo further rigorous imprisonment for one year. Out of the amount of fine, if realized, a sum of Rs.20,000/- each was ordered to be paid to the injured witnesses P.W.1 and P.W.3 and the balance amount of fine to Venkatappa (P.W.7), the father or the legal heirs of the deceased Venkatesh as compensation. No separate sentence, however, was awarded for the offences under Sections 143 and 148 of IPC.

4. Feeling aggrieved and dissatisfied against the judgment and order of the High Court, the appellants have filed the present appeal by way of special leave challenging their conviction and sentence imposed on them by the High Court.

5. Briefly stated the facts of the case are that the appellants are residents of Village Gangonahalli. The deceased Venkatesh, Rajanna (P.W.1), Kenchaiah (P.W. 3), Venkatappa (P.W.7) and Lakshmana (P.W.10) are residents of Village Basvanapalya. The distance between the said two villages is about 1.5 to 2 kilometres. Venkategowda (A-1) is the father-in-law of complainant Rajanna (P.W.1) and Venkatappa (P.W.7) is the father of the deceased.

6. The occurrence, in question, took place on 04.11.1986 at about 6.30 p.m. when Rajanna (P.W.1), Kenchaiah (P.W.3), Lakshmana (P.W. 10) and the deceased Venkatesh went to the Co-operative Society at Chowdanapalya and collected food grains from the ration shop. When they were returning to their village, they found Venkategowda (A-1) standing in front of his house armed with a chopper. A-1 had picked up a quarrel with the deceased Venkatesh, Rajanna (P.W.1), Kenchaiah (P.W. 3) and Lakshmana (P.W. 10) on the pretext as to why they had worked in the garden of Thimmappa Gowda inspite of they being asked not to do any job of Thimmappa Gowda. Govindappa (A-4) assaulted Rajanna (P.W.1) on his right hand with a spear whereas Govindaiah (A-5) assaulted him with a club on his back. Shivanna (A-3) assaulted the deceased Venkatesh with a

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2006 Supreme(SC) 1052

IMPORTANT POINTDelay in lodging FIR will not be fatal if the ocular version of eye-witnesses was reliable and trustworthy.

Cases Referred (2)

IMPORTANT POINT
Delay in lodging FIR will not be fatal if the ocular version of eye-witnesses was reliable and trustworthy.