Fakkir Mohamed Ibrahim Kalifulla, J.
1. This appeal, at the instance of accused Nos.1 to 3 is directed against the judgment of the Division Bench of the High Court of Karnataka at Bangalore in Criminal Appeal No.787 of 2007 dated 01.03.2012 by which conviction and sentence imposed on the Appellants for offences under Sections 143, 147, 148, 448 and 302, Indian Penal Code (IPC) read with Section 149 of IPC was confirmed.
2. The case of the prosecution was that the accused along with 40 others formed themselves into an unlawful assembly with the Criminal Appeal No.119 of 2013 1 of 28 Page 1 common object of committing murder of the complainant Mahadeva (PW-11) and the deceased Lingaraju apart from committing other offences. It was alleged that with the above common object of such assembly, they also hatched a criminal conspiracy prior to 3 p.m. on 13.02.1999 and all the accused went to the shop of the deceased and the complainant, committed trespass armed with deadly weapons like swords, choppers, longs, clubs etc., with an intention to kill them and intentionally committed the murder of deceased Lingaraju by assaulting him all over his body with the use of deadly weapons possessed by them and that when the deceased Lingaraju in his injured condition tried to escape and run away towards the police station, he was further assaulted by the accused by chasing him down. The deceased Lingaraju ultimately fell down with multiple severe injuries in front of Surya Prabha Hardware shop. Thereafter, the accused alleged to have run away from the scene with the weapons in different vehicles in different directions. When the victim Lingaraju was immediately shifted to the Government Hospital, he was declared dead on examination by the doctors.
3. Exhibit P-18 was the complaint which was lodged at 3.30 pm, while the occurrence was stated to have happened at 3 p.m. on 13.02.1999. Altogether 44 accused were proceeded against. In the course of trial, A-8 died. The trial Court convicted A-1, A-2, A-3, A-4, Criminal Appeal No.119 of 2013 2 of 28 Page 2 A-5 and A-29 and rest of the accused were all acquitted. The Criminal Appeal No.787 of 2007 was preferred by the present Appellants along with A-4, A-5 and A-29 while Criminal Appeal No.1775 of 2007 was preferred by the State of Karnataka. By the impugned judgment, the Division Bench of the High Court, while confirming the conviction and sentence imposed on the Appellants, allowed the appeal preferred by A-4, A-5 and A-29 and acquitted them of all the charges. As many as 49 witnesses were examined on the side of the prosecution.
4. We heard Mr. Altaf Ahmad, learned Senior Counsel for the Appellants and Mr. Parikshit Angadi, learned counsel for the Respondent. Mr. Altaf Ahmad, learned Senior Counsel in his submissions stated that of the 49 witnesses, reliance was mainly placed upon PWs-11, 14, 15, 19, 24, 30, 42, 43 and 44 out of whom many turned hostile and quite a number of them were found to be chance witnesses and unreliable. PW-11 was relied upon by the prosecution as star witness who was the complainant himself and Exhibit P-18-complaint was lodged by him. Apart from PW-11, PWs- 19, 30 and 32 were also claimed to be eye-witnesses. The learned Senior Counsel also submitted that no test identification parade was held. According to him, though PW-11 was claimed to be an eye- witness along with PWs-19, 30 and 32, there were serious Criminal Appeal No.119 of 2013 3 of 28 Page 3 deficiencies in their evidence and, therefore, they cannot be accepted to have witnessed the occurrence even going by what they have deposed before the Court. The learned Senior Counsel also contended that going by the complaint Exhibit P-18, there were serious contradictions as compared to the oral evidence led before the trial Court and, therefore, the conviction of the Appellants cannot be sustained. The learned Senior Counsel contended that whatever reason which weighed with the Courts below for the acquittal of the other accused equally applied to the Appellants and consequently, they are also entitled for acquittal on the very same reasoning.
5. The learned Senior Counsel pointed out that what weighed with the High Court in confirming the conviction against A-1 were the evidence of PWs-11, 19, 42 and 44, which were found to be not trustworthy to confirm the conviction of A-4, A-5 and A-29 and in such circumstances, as the said evidence was mutatis mutandis applied to A-1 also, the conviction as against A-1 could not have been singled out for confirming the conviction. The learned Senior Counsel pointed out that similarly in respect of A-2, the High Court relied upon PWs-11, 14, 15, 24, 43 and 44 which again contained very serious infirmities in order to acquit the other accused by the trial Court and A-4, A-5 and A-29 by the High Court and Criminal Appeal No.119 of 2013 4 of 28 Page 4 consequently, the reliance placed upon those witnesses for convicting A-2 was not justified. The learned Senior Counsel further contended that the High Court relied upon PWs-11, 15, 19, 24, 30, 43 and 44 for confirming the conviction of A-3 and since the evidence of those witnesses were not sufficient for confirming the conviction of A-4, A-5 and A-29 and that their said evidence could not be relied upon for the conviction of the other accused, the confirmation of the conviction of A-3 alone by the High Court cannot be confirmed. The learned Senior Counsel in support of his submission took us through the contents of the complaint Exhibit P-18, the evidence of PWs-11, 19, 30, 32, 42, 44 and the sketch Exhibit P-55 to point out the serious discrepancies in their version which, according to him, could not have been relied upon by any stretch of imagination to support the conviction of the Appellants.
6. As against the above submissions, Mr. Parikshit Angadi submitted that the evidence of PWs-11, 15, 32 and 44 who were eye witnesses to the incident were sufficient enough to support the case of prosecution. The learned counsel pointed out that PW-15 was truly an eyewitness as he was a hawker who was doing vending business of Bananas by stationing his four wheeled pushing Gadi in front of Anjuman complex building at Ambedkar Road opposite to which the shop of the deceased was located. He also contended that Criminal Appeal No.119 of 2013 5 of 28 Page 5 PW-44, who was also doing fruit business as a hawker in his four wheeled pushing Gadi in front of Dr. Mahadevswami Clinic on the very same Ambedkar Road also witnessed the said incident and that since they were regularly doing their vending business on the said road opposite to the place of occurrence, their version was rightly relied upon by the trial Court. The learned counsel further contended that PW-11 was able to identify the Appellants by their names and his complaint Exhibit P-18 was based on what he actually witnessed at the place of occurrence and, therefore, the complicity of the Appellants in the crime was established beyond reasonable doubt. The learned counsel for the Respondent State, therefore, contended that the conviction and sentence imposed on the Appellants by the trial Court and confirmed by the High Court does not call for any interference.
7. Having heard learned counsel for the Appellants and the Respondent, we wish to note the relevant provisions under which the conviction was ordered by the trial Court in its judgment dated 21.04.2007. In its ultimate conclusion, the trial Court convicted A-1 to 5 and 29 for the offences under Sections 143, 147, 148, 448 and 302 read with Section 149, IPC. The said accused persons were acquitted of the offences punishable under Section 120B and 153B read with 149, IPC. The High Court in the impugned judgment Criminal Appeal No.119 of 2013 6 of 28 Page 6 confirmed the above said conviction of the Appellants while setting aside the conviction relating to A-4, A-5 and A-29.
8. In the first instance, while considering the submission of learned Counsel, we want to note the finding of the trial Court with reference to some of the witnesses who were relied upon by the High Court while confirming the conviction of the Appellants. Those witnesses were PW-11, 14, 15, 19, 24, 30, 42, 43 and 44.
9. Insofar as PW-19 was concerned, when we peruse the judgment of the trial Court, we find that in its conclusion the said witness who was a chance witness has been held to be wholly unreliable and unbelievable for stated reasons. In the opinion of the trial Court, the said witness did not inspire confidence and, therefore, it was wholly unsafe to rely upon the said witness. Having regard to the said categoric findings of the trial Court that he was a chance witness and that his evidence was wholly unreliable and unbelievable, the reliance placed upon the said witness by the High Court for the guilt of A-2 cannot also be accepted. As far as the said witness was concerned, the trial Court while considering his evidence has specifically stated as under:
“therefore, the evidence of PW-19 given before the Court by identifying A1, A3, A4 and A29 as the persons present in the said assembly, in absence of specific Criminal Appeal No.119 of 2013 7 of 28 Page 7 evidence as to the carrying of or possessing deadly weapons with them and assaulting the deceased with the said weapons, do not appear to be reliable.”
10. After stating so, the trial Court proceeded to state as under:
“therefore, the evidence of PW-19 do not inspire any confidence, as it appears to be weak and unbelievable as against all accused.”
11. After arriving at the above conclusion as regards the reliability of PW-19 in the very next passage, it proceeds to state that the evidence of PW-19 was corroborated by the other eyewitnesses as regards the presence and acts done in the commission of crime by A-1, A-3, A-4, A-6 and A-29 and, therefore, though the evidence of PW-19 was not reliable as a whole, his evidence insofar as identifying A-1, A-3 A-4, A-6 and A-29 as the persons present in the said assembly, was believable as corroborative evidence. It must be noted here that for making such a sweeping and contradictory statement, the trial Court has not adduced any convincing and cogent reasons to substantiate its conclusion. When we consider the said conclusion of the trial Court, it must be stated that such a conflicting conclusion reached by the trial Court without any strong convincing reason will be wholly unsafe and it would be dangerous to accept such a blank conflicting conclusion for returning the finding of guilt. When once the trial Court finds that the evidence of Criminal Appeal No.119 of 2013 8 of 28 Page 8 a particular witness was unreliable and unbelievable, we fail to understand as to how the said Court can in the same breath state that such an unreliable and unbelievable version can be accepted as a corroborative piece of evidence to prove their complicity in the commission of the crime.
12. Therefore, once the trial Court arrived at the conclusion that the evidence of PW-19 was unreliable and unbelievable, it cannot subsequently turn around and state that such an unreliable and unbelievable version can be supportive of the version of other witnesses and that too without assigning any convincing reasons. It does not appeal to any logic or reason for us to accept such a conclusion. Therefore, that part of the analysis made by the trial Court by which it reached the conclusion that PW-19 was an unreliable and unbelievable witness, should go to the benefit of the accused. In the said circumstances, the reliance placed upon by the High Court on PW-19 to confirm the conviction of A-1 and A-3 cannot also be accepted.
13. Further the trial Court while referring to the evidence of PWs- 19, 24, 30 and 43 stated that all of them were chance witnesses since they had gone to the place of incident on the date of occurrence and time by chance in connection with their personal work or business. Therefore, when PW-19 was a chance witness and Criminal Appeal No.119 of 2013 9 of 28 Page 9 in the conclusion of the trial Court he was an unreliable and unbelievable witness, it will lead to a travesty of justice if the version of the said witness is to be relied upon to support the guilt of A-1 and A-3.
14. When we come to the evidence of PW-24 whose version was relied upon to support the guilt of A-2 and A-3, the trial Court while examining his evidence stated as under:
“PW-24 specifically stated that, before giving statement to police he had ascertained the names and addresses of such persons known to him by face from the radio repairer, by going to his shop and by giving him the factual identity and their professions within two minutes of the incident. This version of PW-24 appears to be exaggerative and therefore do not inspire any confidence. Hence renders unreliable as against all the accused whose names he has referred in his statement before the police”
(underlining is ours)
15. PW-24 had referred about A-1 to A-4, A-29 and A-44. The trial Court having analyzed his evidence had come to the above conclusion. Admittedly, he was not knowing the names of any of the accused persons. To support his stand that he saw A-1 to A-4, A-29 and A-44 he claimed that before giving his statement to the police, he contacted a nearby shop owner who was also a Muslim and through whom he ascertained the names of those individuals and Criminal Appeal No.119 of 2013 10 of 28 Page 10 that such ascertainment was made within a short span of two minutes and that is how he was able to identify those accused persons. The trial Court, under this circumstance, had rightly concluded that such a claim of PW-24 was highly exaggerative and, therefore, the same cannot be relied upon.
16. After reaching the above conclusion, here again the trial Court took a contrary conclusion that his evidence as against A-1 to A-4 and A-29 was acceptable as a corroborative piece of evidence of other eye-witnesses. Such a conclusion is diametrically opposite to its own earlier conclusion that PW-24 was not knowing any of the accused referred to by him on his own. The said contrary conclusion of the trial Court is, therefore, liable to be rejected, in which event there was no scope to rely upon the evidence of PW-24.
Consequently, the reliance placed upon PW-24 by the High Court for confirming the conviction of A-2 and A-3 cannot be accepted.
17. When we come to the evidence of PW-30, as stated earlier, PW-30 was also found to be a chance witness as he had gone to the place of incident on the date of occurrence and time by chance in connection with his personal work or business. As regards his evidence, after a detailed reference to his version, the trial Court has concluded as under:
Criminal Appeal No.119 of 2013 11 of 28 Page 11 “…….But, the said witness nowhere stated for having seen any of the accused referred to by him in his statement assaulting the deceased with any weapon alleged to be possessed by him, either inside the shop of the deceased or on the road by chasing. Therefore, the evidence of PW-30 which is self contradictory cannot be relied upon as a whole, except the evidence stated about presence of accused No.3, 4 and 29 at the said place, which is corroborated with evidence of other independent eye witnesses…….”
18. When the said conclusion arrived at by the trial Court, relating to PW-30 that he was a chance witness and that his version was self-
contradictory and, therefore, not reliable, his version about the presence, in particular of A-3 with whom we are presently concerned, cannot also be adverted to inasmuch as A-3 has otherwise been held to have been directly involved in the commission of the crime, namely, inflicting of injuries on the person of the deceased Lingaraju. Such act of inflicting of injuries was stated to be inside the shop of the accused, which was already surrounded by nearly 35 to 40 persons as stated by PW-11. Therefore, there was no scope for placing any reliance upon PW-30 as well, either by the trial Court or by the High Court to confirm the conviction of A-3.
19. The next witness which has been referred to and relied upon by the High Court in the impugned judgment as against A-1 and A-3 was PW-43. In fact, with reference to PW-43, the conclusion of the Criminal Appeal No.119 of 2013 12 of 28 Page 12 trial Court as against him was highly derogatory. In paragraph 18 of the trial Court judgment, the nature of evidence rendered by PW-43 has been mentioned and it has been observed as under:
“PW-43 also stated that he was working then in Pandavapur and used to visit Kollegal once in a week. Therefore, the chance of witnessing of such incident by being present at the said place, time and date by PW-43 appears to be doubtful and the evidence of PW- 43 given by identifying all the accused persons as the persons and members of said group which fled away from the said place appears to be an exaggeration, when as admitted by said witness in cross- examination that he had never seen any of the accused before that day.”
(Underlining is ours)
20. When such is the caliber of the witness, namely, PW-43 and his version relating to the occurrence, we fail to understand as to how the High Court was able to rely upon the said witness in order to find the guilt as against A-2 and A-3.
21. The next witness who was relied upon by the High Court was PW-44 as against all the three Appellants, namely, A-1 to A-3. It was startling to note that with reference to the said witness, the trial Court has remarked that his version was contradictory in material aspects as against the case of the prosecution which was otherwise claimed to be supported by the other eye-witnesses. Therefore, the version of PW-44 was considered not trustworthy as it was Criminal Appeal No.119 of 2013 13 of 28 Page 13 exaggerative and wholly unbelievable. Hence, the evidence of PW- 44 in no way supported the case of the prosecution.
22. Having thus noted the version of PW-19, when we refer to the evidence of PW-14, in the analysis of the trial Court his evidence was also unreliable and unbelievable. The trial Court has remarked as under while referring to the evidence of PW-14.
“Therefore, the evidence of this witness appears to be unreliable and unbelievable as it do not inspire any confidence in the mind of the Court as against the unknown and unidentified persons alleged to be also present in the said assembly, moreover the alleged words said to be uttered by the other unknown and unidentified persons said to be present in group, cannot be sufficient to attribute knowledge of the common object of committing murder of deceased and joining said assembly intentionally and continuing in said assembly till object is achieved.”
xxx xxx xxx Therefore, the evidence of PW-14 also cannot be accepted as sufficient and reliable to hold A-2, A-4, A- 23 and A-24 as guilty of the offences under Sections 143, 147 and 148 of IPC. The very presence of the said witness at the time of the occurrence appears to be suspicious, in view of self-contradictory versions of said witness and the contrary evidence to the prosecution story and to the evidence of PW-5 and PW-13. All the said witnesses examined as PW-5, PW- 13 and PW-14 are chance witnesses, who happened to have witnessed the incident, by being present at said place and time by chance. The reasons assigned by said witnesses for their presence at the said place and time and their stay at the said place do not appear to be natural or probable in view of the material contradictions in their evidence.”
Criminal Appeal No.119 of 2013 14 of 28 Page 14
23. After such a categoric conclusion relating to the unreliability and suspicious version of PW-14, the trial Court in one breath concluded that his evidence, as regards the presence and acts of A-
2 and A-4 done in commission of the offences, is considered for corroboration with evidence of eye witnesses, along with the prosecution witnesses examined as eye witnesses to the incident. In the light of the earlier detailed reference to the nature of evidence tendered by PW-14 along with PWs-5 and 13 and the ultimate conclusion of the trial Court in having held that their evidence was unreliable, unbelievable and suspicious, it was wholly improper on the part of the trial Court to ultimately state without any justifiable reason that their version can be accepted for corroboration. Therefore, the reliance placed upon the said witness, namely, PW-14 both by the trial Court as well as the High Court cannot be accepted.
24. When we come to the evidence of PW-15, as noted by the trial Court, he used to sell bananas by stationing his puller Gadi in front of Anjuman Complex on Ambedkar Road and that he saw 40 to 45 persons going towards the shop of the deceased armed with knives, choppers and swords. He further stated that out of the said group, 15 persons trespassed into the shop of the deceased while around 20 persons were standing outside the shop. He stated that those who trespassed into the shop assaulted the deceased Lingaraju with Criminal Appeal No.119 of 2013 15 of 28 Page 15 choppers, knives, longs and swords all over the body (viz.) chest, neck, left hand, back etc. Significantly, he also stated that when he saw the deceased Lingaraju escaping from the shop and running towards the police station, he collapsed in front of Surya Prabha Hardware shop and at that point of time, PWs-11 and 24 were running towards that spot. The trial Court has also specifically noted that the version of PW-15 in the course of the cross examination that PW-11 arrived at the place of occurrence only after the fall of the deceased near the hardware shop was contrary to the version of PW-11. The trial Court, therefore, stated that if the said statement of PW-15 is to be believed, then the evidence of PW-11 would be unreliable as regards his witnessing the incident of assault of the deceased inside the shop, as well as, outside the shop. The above factors, therefore, disclose that the evidence of PW-15 and PW-11 are self contradictory in nature.
25. When we analyse the evidence of PW-15 vis-à-vis the evidence of PW-11, we are convinced that the version of both the said witnesses cannot be relied upon for reaching a definite conclusion as to the guilt of the accused, in particular, the Appellants herein. Moreover, admittedly PW-15, the deceased and PW-11 are closely related. The trial Court has also held that the version of PW-15 that he saw A-6 present in the group of 15 persons who trespassed into Criminal Appeal No.119 of 2013 16 of 28 Page 16 the shop of the deceased and assaulted him was contrary to the prosecution story and the evidence of other eye witnesses. Admittedly, no weapon was recovered at the instance of A-6, while according to PW-15, A-6 was not only in possession of a weapon but also used it in the commission of the offence. In the light of the above analyses made by the trial Court as regards the version of P- 15, which consists of very many incongruities relating to the factum of occurrence, the presence of witnesses and the overt act alleged against some of the accused, it will be highly unsafe to place reliance upon the said witness as regards the guilt of the Appellants/Accused.
26. Having noted the above features relating to PWs-14, 15, 19, 24, 30, 43 and 44, we are left with the so-called star witness, namely, PW-11 who was none other than the elder brother of the deceased Lingaraju. Since, the prosecution heavily relied upon the said witness, it is necessary to examine the version spoken to by the said witness in some details as regards the motive, the place of occurrence, the manner in which the act was said to have been committed by the various accused, his claim about his presence at the place of occurrence and also the extent of the overt act attributed to different accused including the Appellants and the subsequent conduct of the said witness. After making reference to Criminal Appeal No.119 of 2013 17 of 28 Page 17 these factors as narrated by him in his evidence as well as noted by the trial Court in its judgment, it can be examined as to whether the heavy reliance placed upon the said witness can be held to be justified.
27. In order to analyse the evidence of the said witness in the first instance, the location where the occurrence took place as spoken to by PW-11 in his complaint and as to how many of the accused according to him were involved in the commission of offence has to be noted. The complaint is Exhibit P-18. The sum and substance of the contents in the said document was that on 13.02.1999 at about 3 p.m. when PW-11 was coming from Shringar Hotel after taking coffee towards his shop, noticed all of a sudden that about 15 persons trespassed into his shop and assaulted his younger brother Lingaraju, the deceased with knife, choppers and the like mercilessly on his body, back, neck and leg etc. and that while he was proceeding towards the place of occurrence, simultaneously screaming, all the accused persons ran away from the shop proclaiming that their vengeance was fulfilled and that the deceased was murdered. He also stated that, while so, his younger brother, namely, the deceased was running towards the police station from the shop and fell down near the old post office. He, however, stated that from among the accused persons who were running away he Criminal Appeal No.119 of 2013 18 of 28 Page 18 could note the three Appellants and that he did not know the names of the other persons, though he would be in a position to identify them if he gets an opportunity to see them.
28. Keeping the said version of PW-11 immediately after the occurrence in mind, when we examine the mahazar prepared at the place of occurrence, it has been noted therein that the place of occurrence pointed out by PW-11 was situated inside the banana shop of PW-11 himself. The size of the shop was described as North- South 11 feet and East-West 8 feet with Mangalore tiled roof top. A cement platform of 3 feet width and 2½ feet height with 9 feet length was stated to be there in front of the said shop. The mahazar also mentions that the occurrence took place at the time when the deceased was carrying on his business activity of selling bananas inside the South-East corner of the said shop. Again keeping the above specific particulars noted in the mahazar based on the instructions given by PW-11, it will be necessary to note the place where PW-11 was taking coffee, namely, Shringar Hotel, vis-à-vis the exact place where the deceased fell down after he was allegedly assaulted by the accused inside the shop and the approximate distance as between the shop of PW-11, namely, where the deceased was carrying on the business of selling bananas and the Criminal Appeal No.119 of 2013 19 of 28 Page 19 place where the deceased fell down by referring to the sketch mark, namely, Exhibit P-55 before the trial Court.
29. The above mentioned sketch discloses that the banana shop of PW-11 was situated on the eastern side of the main road called Ambedkar Road while the Shringar Hotel was on the western side i.e. on the opposite side where the banana shop was located. The distance approximately stated to be around 150 feet. PW-11 claimed that when he was returning from Shringar Hotel after taking coffee and was approaching near the Mahadevswami Clinic, he noticed the crowd which was assembled in front of his banana shop. As per the Exhibit P-18 complaint, he noticed not less than 15 persons who trespassed into his shop. Before the Court, he stated that when he was returning back from Shringar Hotel along with his friend Parmesh near Geeta Bhawan Hotel, he saw a group of about 40 to 45 persons who were coming from Nalanda Gas Agency in front of his banana shop and from among them, 15 persons were shouting “Mar do Mar do” who were holding two swords like long, axes and small knives in their hands. He also narrated that the deceased Lingaraju was alone in the shop and the mob went inside the shop and assaulted him with the said weapons. Considering the said version of PW-11, in contrast to the version of PW-15 who was stated to be present even before the occurrence took place, PW-15 stated Criminal Appeal No.119 of 2013 20 of 28 Page 20 in clear terms that when PW-11 arrived, the deceased had already left the Banana shop running towards the Police Station and fell down in front of Surya Prabha Hardware shop.
30. When we examine the deposition of PW-11, the relevant factors to be noted are that his banana shop was situated near Geeta Bhawan on Ambedkar Road, that Surya Prabha hardware shop where the deceased ultimately fell down was at a distance of 140-
150 feet from his banana shop. The Shringar hotel where PW-11 was taking coffee was situated in a lane and that while he was returning from the said hotel after taking coffee he saw 35-40 persons surrounding his shop and 15 persons forcibly entered his shop armed with axe, knife and long (meaning a long knife) who were assaulting the deceased Lingaraju. According to him, after the deceased was attacked inside the banana shop, he somehow escaped and was running towards the police station after crossing Geeta Bhawan and near Surya Prabha hardware shop where he collapsed and fell down.
31. He would state that A-1 who was present and who assaulted his deceased brother was holding an axe, that A-2 who was assaulting his deceased brother was holding a long (meaning a long knife), that A-3 was assaulting his deceased brother with a long and A-29 was also assaulting his deceased brother with a sword. After Criminal Appeal No.119 of 2013 21 of 28 Page 21 saying so, in the later part of his evidence, he stated without any ambiguity that M.O.5 sword, which was shown to him in the Court was found in the hands of A-3. He also stated that the axe shown to him marked as M.O.19 was in the hands of A-2. However, he stated that it was not possible for him to state the weapons held by any of the accused by identifying the same. He went on to state that his younger brother i.e., the deceased was assaulted inside the shop with the aid of long axe, knife that all the remaining accused who were 35-40 in number, were standing outside the shop shouting ‘maro maro’ and that when his brother was attempting to escape from the shop the assault continued. He would further state that when he saw 15 persons entering his shop and another group of 30 persons standing outside his shop, he was frightened by such a large group formed outside his shop and that he could see his brother who was standing in front of his shop in order to escape from their clutches, running towards Surya Prabha hardware shop. He also stated that after seeing the assault made by the persons in the group on his younger brother, he did not run towards his shop but ran towards Surya Prabha hardware shop where his brother fell down.
32. Keeping the various above factors stated by PW-11 and also as noted in the Exhibit P-18, the complaint, the mahazar as well as P-55 Criminal Appeal No.119 of 2013 22 of 28 Page 22 sketch read along with the version of PW-15, it will have to be stated that PW-11, who was taking coffee in Shringar hotel, which was located in a lane situated beyond Surya Prabha hardware shop, even by accepting the fact that he was approaching near Mahadevswami Clinic, which was in between the said Shringar hotel and his banana shop, the evidence of PW-11 could not have been believed insofar as it related to the actual occurrence, which admittedly was taking place inside his banana shop, the length and breadth of it being 11 ft. x 8 ft. which place was admittedly surrounded by nearly 30 persons while 15 persons were stated to be inside the said shop of small size. We say so because it would have been next to impossible for PW-11 to have witnessed the actual occurrence that was taking place inside such a small place which was already occupied by 15 persons and surrounded by 30 others outside the shop, taking note of the fact that he was located in a place away from the shop near Mahadevswami Clinic.
33. It is necessary to examine and find a definite answer to the said question in the light of various allied facts with reference to the number of persons, the place from where he was witnessing such an assembly, the nature of movement of the persons gathered in front of his banana shop, his own statement that he was frightened while looking at such a large group of persons and that even according to Criminal Appeal No.119 of 2013 23 of 28 Page 23 him he saw his brother running away from the shop with a view to escape and that he did not run towards the shop but was eager to follow his brother who was running towards Surya Prabha hardware shop where he ultimately fell down and collapsed. In this context, the evidence of PW-15, another so called eye witness, was very categoric to the effect that when PW-11 came to the spot, the deceased had already reached Surya Prabha Hardware Shop where he collapsed.
34. It was beyond controversy that the actual occurrence of assault on the deceased Lingaraju took place inside the banana shop, the area of which going by the description, could not have been beyond 90-100 sq. feet. If inside such a small place assuming 15 persons had entered and by the time PW-11 was approaching near the Mahadevswami Clinic, the occurrence had already taken place, it would have been next to impossible for anyone, much less PW-11 to have gone inside the shop and to have noticed as to who was assaulting the deceased with what weapon. While looking at the place of occurrence, even if it is from a nearby place, when the particular place of occurrence was surrounded by not less than 35- 40 persons of whom 15 persons stated to have already entered the place of occurrence, the scope for PW-11 to have witnessed the incident with that much of exactitude, as to which accused Criminal Appeal No.119 of 2013 24 of 28 Page 24 assaulted his brother with what weapon in his hand cannot be said to have been really witnessed by him. That apart, even by his own version he saw his deceased brother coming out of the shop and trying to escape from the assault of persons gathered there who continued to inflict injuries on him and on seeing his brother running towards the police station, which was beyond Surya Prabha hardware shop, PW-11 himself instead of going towards the shop was following his injured brother who fell down near Surya Prabha Hardware and collapsed. The said part of his evidence is consistent with the evidence of PW-15.
35. Apart from the above inconsistencies which could be gathered from the evidence of PW-11, his specific overt act as against A-3 that he was holding a long in his hand, was falsified by his own statement while identifying M.O.5, which was a sword which he stated was found in the possession of A-3. Similarly, with reference to A-2 while in the earlier part of his statement, he stated that he was assaulting the deceased with the aid of a long (a long knife) when he identified M.O.-18, he stated that it was the said axe which was found in the hands of A-2. Here again, PW-11 was not consistent with reference to the weapon stated to have been found in the possession of A-2 and A-3. A cumulative consideration of his version discloses that PW-11 could not have witnessed the occurrence as Criminal Appeal No.119 of 2013 25 of 28 Page 25 spoken to by him. We, therefore, find that the evidence of PW-11 was full of inconsistencies and unfortunately the trial Court as well as the High Court completely ignored such inconsistencies while holding the Appellants guilty of the offence alleged against them.
36. As has been narrated in the earlier part of this judgment, the High Court placed reliance upon PWs-11, 14, 15, 19, 24, 30, 43 and 44 to hold that the offence as against A-1 to A3 was sufficiently established. When we peruse the judgment, we find that the High Court seemed to have totally omitted to note relevant findings of the trial Court as regards the evidence of PWs-14, 15, 19, 24, 30, 43 and 44 by stating that there was no reason to disbelieve their evidence except that it suffered from little variations.
On the other hand, as has been noted by us, by extracting the relevant part of the findings of the trial Court wherein the trial Court has given categoric finding with reference to each of the above said witnesses, that many of them were chance witnesses and were not able to give a real picture of what transpired in the place of occurrence because of glaring inconsistencies in their evidence and, therefore, their evidence was totally unreliable and unbelievable. Unfortunately, the High Court without assigning any reason perfunctorily held that except minor variations those witnesses were eye witnesses and that their version Criminal Appeal No.119 of 2013 26 of 28 Page 26 was believable, trustworthy, natural which finding was not supported by any convincing reason.
37. Having regard to the above analysis made by us with reference to the so-called star witness PW-11 and the other so-called eye witnesses with reference to whom the trial Court has made it clear that they were all unreliable and unbelievable, it will be wholly unsafe to rely on such evidence in order to confirm the conviction imposed on A-1 to A-3.
38. For the above stated reasons, we find force in the submission of Mr. Altaf Ahmed, learned Senior Counsel that though the very version spoken to by the said witnesses persuaded the trial Court to acquit all other accused, except A-1 to A-5 and A-29 and the High Court to acquit A-4, A-5 and A-29, for the very same reasoning, the conviction of A-1 to A-3 cannot also stand. Consequently, the appeal is allowed. The conviction and the sentenced imposed on the Appellants are set aside. The Appellants shall, therefore, be set at liberty forthwith unless their detention is required in any other case.
. J.
[Fakkir Mohamed Ibrahim Kalifulla] Criminal Appeal No.119 of 2013 27 of 28 Page 27 . J.
[Abhay Manohar Sapre] New Delhi; December 03, 2014.
Criminal Appeal No.119 of 2013 28 of 28 Page 28