2006 Supreme(SC) 1086

2007(2) Supreme 239
SUPREME COURT OF INDIA
(From Karnataka High Court)
A.K. Mathur and Lokeshwar Singh Panta, JJ.
B.K. Channappa—Appellant
versus
State of Karnataka—Respondent
Criminal Appeal No. 404 of 2004
With
Criminal Appeal No. 566 of 2004
With
Criminal Appeal No. 580 of 2004
Decided on 10-11-2006
Counsel for the Parties :
For the Appellant : N.P. Midha, Mohan V. Katarki (for Javed Mahmud Rao) and N.D.B. Raju (for Guntur Prabhakar), Advocates.
For the Respondent : Sanjay R. Hegde and Anil K. Mishra, Advocates.

IMPORTANT POINT
In a searching lengthy cross examination some improvements, contradictions and omissions are bound to occur which if not serious and vital would not permit to discard the substratum of prosecution case.

Headnote:(i) Indian Penal Code, 1860—Sections 302, 302/149, 324 and 326—A1 suspected that deceased had played role in getting A1 defeated in election and thus entertained grudge against deceased—All accused 23 in number armed with weapons like choppers, axes, sickle, club and stones hiding in an ambush near land of deceased, surrounded deceased as soon he arrived and gave a number of blows with weapons—PWs 1, 7 and 19 rushed to spot and were also injured—Trial Court convicted A2, A3, A10, A11, A13, A14, A17 to A22 u/s 302/149 IPC and offences u/s 324 and 326 IPC—High Court maintained conviction of A2, A3, A17, A19 and A20 and conviction of A1 and A15 was recorded in 302acquittal appeal—Appeal—Evidence of injured witnesses established the prosecution case against A2, A3, A17, A19 and A20—Certain discrepancies in regard to weapons of offence individually used were minor and insignificant—Some improvements, contradictions and omissions were bound to occur which could not be treated serious and vital so as to discard substratum of prosecution case—Their evidence found corroboration from medical evidence—However none of the injuries inflicted was on vital part—Cause of death was hypovolaemic and neurogenic shock—Prosecution did not establish that appellants inflicted injuries with intention to cause death—Conviction was liable to be altered to one u/s 304 Part II IPC r/w 149 IPC—Sentence of eight years imprisonment and fine of Rs. 2000/- each awarded.

       Held : We have independently scrutinized the evidence of the material witnesses in the teeth of the rival contentions of the parties. On reprisal and scrutiny of the evidence of the injured witnesses Shekharappa (PW-2), B.G. Shivamurthaiah (PW-3) and B.G. Prakashaiah (PW-4), they have fully established the case of the prosecution against A-2, A-3, A-17, A-19 and A-20, although there were certain discrepancies in their testimony and in comparison to the versions of PW-6, PW-7 and PW-19, the eyewitnesses, in regard to the weapons of offence individually used by A-1, A-3, A-17, A-19 and A-20 for inflicting injuries on the person of each of injured witness as also on the person of the deceased. The discrepancies, as pointed out by the learned counsel for the appellants, are minor and insignificant. The occurrence took place on 05.07.1995 and the witnesses were examined in the court after about a gap of almost five years. The evidence on record further shows that the injured witnesses had been subjected to searching lengthy cross-examination and in such type of cross-examination, some improvements, contradictions, and omissions are bound to occur in their evidence, which cannot be treated very serious, vital and significant so as to disbelieve and discard the substratum of the prosecution case. The evidence of the injured witnesses and other eyewitnesses has been rightly re-appreciated and accepted by the High Court and we find no cogent and sound reason to differ from the well-reasoned judgment upholding the order of the trial court. There is, therefore, no merit in the argument of the learned counsel for the appellants that the evidence of the injured witnesses and other eyewitnesses should be labelled as the evidence of the interested witnesses.(Para 18)

       On close scrutiny of the evidence of Dr. R. Deverajan (PW-32), it is clear that none of the injuries inflicted on the person of the deceased was found on any of the vital part of his body. As per the opinion of the Doctor, the deceased died due to hypovolaemic and neurogenic shock. On perusal of the medical report prepared by Dr. R. Deverajan (PW-32), large crush injury or lacerated injuries were found either on the chin, right leg, left knee, left wrist, right shoulder, right forearm, etc. on the body of the deceased, except two lacerated injuries above right lateral mallalous and on right medial mallalous. It is true that as many as 18 injuries found on the dead-body of the deceased, were noticed but the prosecution has not established on record that the said injuries were inflicted by the appellants with the intention to cause the death of the deceased. Considering the nature of the injuries having been found not on the vital part of the body, we are of the view that the conviction of A-2, A-3, A-17, A-19 and A-20 as recorded by the trial court and affirmed by the High Court under Section 302 IPC cannot be sustained. We alter the conviction of A-2, A-3, A-17, A-19 and A-20 from Section 302 IPC read with Section 149 to Section 304 Part-II read with Section 149 IPC. However, taking into consideration the time lag of more than eleven years from the date of the incident till the date of disposal of these appeals by this Court during which period the appellants have suffered physically, mentally and financially, we impose a sentence of eight years on each appellant and a fine of Rs.2,000/- each which, in our view, would meet the ends of justice in the present case. In default of fine, each of the appellants shall further undergo simple imprisonment for three months. (Para 19)

       (ii) Indian Penal Code, 1860—Section 302/149—Out of 23 accused Trial Court convicted some and acquitted rest of the accused—High Court convicted A15 in acquittal appeal—Appeal—Though name of A15 was mentioned in FIR but no injured or eye witness mentioned his name in 161 Cr.P.C. statement—No eye witness or injured witness name A15 that he had participated in inflicting injuries on body of deceased—Weapon of offence was not recovered from him or at his instance—Conviction of this accused was liable to be set aside.(Para 23)