Mallappa vs State Of Karnataka on 7 May, 2021


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Supreme Court of India

Mallappa vs State Of Karnataka on 7 May, 2021

Author: Aniruddha Bose

Bench: Aniruddha Bose, Krishna Murari

                               IN THE SUPREME COURT OF INDIA
                              CRIMINAL APPELLATE JURISDICTION


                              CRIMINAL APPEAL NO. 1993 OF 2010


           MALLAPPA                                    … APPELLANT(S)


                                           Versus


           STATE OF KARNATAKA                         …RESPONDENT(S)




                                           JUDGMENT

ANIRUDDHA BOSE, J.

The appellant (Mallappa) was charged with having

committed fratricide, murder of his brother Earappa, little

beyond the midnight hours of 19th­20th April 1999. His son,

Veeresh was the co­accused. 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
Signature Not Verified

Court of Karnataka set aside the decision of the Trial Court in
Digitally signed by
NEETU KHAJURIA
Date: 2021.05.07
20:03:08 IST
Reason:

relation to Mallappa and convicted him of the offence

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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.

2. 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

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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.

3. Evidence of the autopsy surgeon, Dr. Venketesh Y. (PW­

7) is that death of Earappa was caused due to intra­cranial

haemorrhage and shock. He found an external injury, being a

lacerated wound on right occipital protuberance 3 x ½’’. His

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opinion, as it appears from his examination­in­chief 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.

4. The prosecution case was built up primarily on the

evidence of PW­5, who was presented as an eye­witness and

the depositions PW­3 and Bhogappa (PW­6), 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 examination­in­chief

that she had seen A1 assaulting on the head of her deceased

husband with a club. In her cross­examination, 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. PW­8, who conducted

the inquest, in his deposition stated that he had seized a small

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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.

5. Basamma (PW­5), in her examination­in­chief had stated

that after midnight of 19th ­20th 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 examination­in­chief 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 (A­2) was standing behind him.

In her cross­examination, 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 cross­examination was that by the time she had woken

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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.

6. PW­2­Srinivas, who was adduced as witness to the

seizure of items around the time of inquest in his examination­

in­chief stated:­

“…..From the spot, the police collected blood­stained
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 blood­stained mud.
M.O.5 is sample mud which also collected at the spot.

2. Next from the house of A.1 the police by going near
the ovan in the kitchen seized a club consisting of
blood­stained. 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.”

(quoted verbatim)

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Further, in course of his cross­examination, he had also

stated:­

“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.”

(quoted verbatim)

In his cross­examination he had also specifically stated

that the club was not broken.

7. The Trial Court found that PW­3 and PW­5 had improved

the prosecution case, which was not stated before the police.

The Trial Judge found the evidences of PW­3 and PW­5 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

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any expert to obtain opinion as to whether M.O.­6 and M.O.­10

matched to form the same club.

8. In appeal by the State, it was held by the High Court:­

“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.

10. 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.

11. 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.

12. 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.”
(quoted verbatim)

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9. In our opinion, however, the evidence of PW­5 cannot be

accepted in full. There are contradictions in PW­5’s deposition

as regards the P.W.5 having seen Mallappa at the spot of

occurrence. She stated in her cross­examination, 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 PW­3 as also PW­6. 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 “dhup”, 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 ­examination 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 cross­examination is otherwise

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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.

10. 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 PW­3 and PW­5:­

“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.”

(quoted verbatim)

11. 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

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finding of fact based on evidence being “not of importance” and

“irrelevant”. 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.

12. We have already reproduced the part of the deposition of

Srinivas (PW­2), the seizure witness in which he has stated

that the club was not broken. PW­1 has also deposed on spot

panchanama made by the police on the morning of 20 th 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 PW­8, the

inquest officer in his examination that the latter had seized a

small piece of wooden club. The autopsy surgeon Dr.

Venkatesh Y (PW­7) was not shown that club. It does not

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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.

13. Even if the prosecution version that the PW­3, PW­5 and

PW­6 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.

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14. For these reasons, we set aside the judgment dated 11 th

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 29 th January,

2016 and prayer for bail of the appellant was granted, we

direct discharge of the bail bonds.

15. The appeal is allowed in the above terms. Pending

application(s), if any, shall stand disposed of.

……………………….CJI
(N.V. RAMANA)

………………………….J
(SURYA KANT)

………………………….J
(ANIRUDDHA BOSE)

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New Delhi
Dated 7th May, 2021

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