RAMABORA @ RAMABORAIAH & ANR. Versus STATE OF KARNATAKA

RAMABORA @ RAMABORAIAH & ANR. Versus STATE OF KARNATAKA

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

    IN THE SUPREME COURT OF INDIA

     CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1697 OF 2011

RAMABORA @ RAMABORAIAH & ANR. …Appellant(s)

Versus

STATE OF KARNATAKA          …Respondent(s)

J U D G M E N T

V. RAMASUBRAMANIAN, J.

1. Aggrieved by the conviction for an offence under Section 302 IPC

and the sentence of imprisonment for life handed over to them by the

High Court of Karnataka, reversing the order of acquittal passed by the

Sessions Court, accused Nos.1 and 2 have come up with the above

appeal.

2. We   have   heard   the   learned   counsel   for   the   appellants   and   the

learned standing counsel for the State of Karnataka.

3. The appellants herein were prosecuted along with 20 other persons,

before   the   II   Additional   District   and   Sessions   Judge,   Bangalore,   for

alleged offences under Sections 143, 144, 148, 147, 448 and 302 read

with Section 149 IPC. By a judgment dated 8.8.2001, all the accused

except those against whom the prosecution abated, were acquitted by the

Sessions Court.

4. However on appeals filed by the State of Karnataka, a Division

Bench of the High Court of Karnataka set aside the acquittal of the

appellants herein (A­1 and A­2) and held them guilty of the offence

punishable under Section 302 IPC and sentenced them to imprisonment

for life. But the acquittal of all the other accused was confirmed by the

High Court.

5. Aggrieved by the said judgment of reversal, accused Nos.1 and 2

have come up with the above appeal.

6. The case of the prosecution was that on 30.11.1997 at about 11

p.m., all the 22 accused formed themselves into an unlawful assembly

and   that   armed   with   deadly   weapons,   they   committed   trespass   by

entering into the house of the deceased Siddaraju and committed the

murder of the deceased in furtherance of a common object.  

7. The motive for the murder according to the prosecution, was that

when A­1 was passing through the house of the deceased, he heard the

deceased hurling abuses in a foul and filthy language.  Though the victim

was purportedly abusing his own father, A­1 mistook as though he was

being abused. Therefore, he picked up a quarrel with the deceased and

thereafter went to the village, secured the other accused and went to the

house of Siddaraju, broke open the door, pulled him out to the street and

hacked him to death.

8. The case of the prosecution rested on the ocular testimony of PW­1

and PW­4 who were the mother and maternal uncle of the deceased.

Though the father and sister of the deceased were also examined as PW2 and PW­3, they were not treated as eye­witnesses on the ground that

they had not seen the incidence.

9. Four Panch witnesses examined as PWs 5, 6, 7 and 8 did not

support the case of the prosecution and were declared as hostile.  PW­9,

the mahazar witness also turned hostile. PW­10 was the doctor who

conducted the post­mortem on the body of the deceased.

10. At   this   stage,   it   is   relevant   to   note   that   PW­1,   mother   of   the

deceased, gave a complaint at 00.45 hrs  on 1.12.1997, on the basis of

which Exhibit P­8 FIR was registered.  Thereafter, one Nagamma, wife of

the deceased is said to have given another complaint which was marked

as Exhibit P­9. On the basis of the said complaint, a second FIR was

registered for more offences, including offences under the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. But for

reasons not  known,  this  Nagamma  was not  examined as a  witness,

though cited as a witness in the charge sheet.

11. On the basis of the oral and documentary evidence, the Sessions

Court recorded certain findings with regard to the appellants herein (A­1

& A­2) which are reproduced in the words of the Sessions Court itself, as

follows:­

“1. PW1 speaks about the presence of only six persons and they

are A1, A2, A3, A11, A16 and A18. Whereas A14 speaks about the

presence of only 7 persons viz.., A1, 2, 8, 11, 16 and 12. In this

way PW1 speaks about the presence of 7 accused persons. The

accused stated by these two witnesses are not exactly the same.

Both the witnesses have spoken about only the presence of A1 ,A2,

A11 and A16 and they had not spoken about the presence of

others.

2. The presence stated by PW1 and PW4 put together, are A1 to

A3, A8, A11, A12, A16, A18 and A21. Hence, the presence of all

other accused persons is not even stated by any of the witnesses

and because of it there is no evidence against them.

3. The very fact that PW1 is silent about the presence of A8,

A12 and A21 whose presence is stated by PW4, goes to show that

they  were  not  present. Similarly the  silence of  PW4  about  the

presence of A3 and A18 whose presence is spoken by PW1 goes to

show that A3 and A18 could not have been present. Hence, it

clearly goes to show that there is false implication. 

4. The very fact that the eye witnesses do not speak about the

presence of most of the accused persons goes to show that they

have   been   falsely   implicated.   Hence,   from   the   beginning   the

evidence of the prosecution is doubtful. 

5. When we examined the evidence relating to what weapons

were used, it clearly goes to show that it is only an exaggeration

and none of the witnesses are speaking the truth and even their

presence becomes doubtful. 

6. Accordingly to the complaint, accused­1 assaulted deceased

by   ‘bettukodali’     on   his   head.   A12   Ashwatha   assaulted   the

deceased by club all over the body. All other accused persons

assaulted him with stones and bricks. Hence, according to the

complaint   only   one   ‘bettukodali’   (axe),   one   club   were   used   in

addition to some stones and bricks. But in evidence MO­1 To MO­6

clubs and MO­7 to MO­9 chopper and sickle and axe are marked.

Hence the number of weapons stated in the complaint is different

while compared to the weapons produced and marked in evidence.

7. PW1   goes   to   the   extent   of   saying   that   the   accused   had

brought  ‘machu’, sickle, axe,  knife  and clubs. In this way the

weapons   stated   by   PW1   are   different   when   compared   to   the

weapons stated in the complaint. PW1 is the complainant and

because of it, she could not have stated such weapons which were

not   even   stated   in   the   complaint.   This   goes   to   show   that   the

evidence of PW1 is full of exaggeration and that is not acceptable. 

8. In the complaint the overt act done by accused­1 is that he

assaulted with bettukodali on the head of the deceased. But PW1

states that A­1 assaulted with axe on the ear of the deceased and it

was cut off. PW4 has stated that accused­1 assaulted by sickle.

Hence,   about   the   overt   act   done   by   accused­1,   there   is

contradiction. 

9. When we see that  overt act done by accused­2 Thimma,

there is contradicting version. In the complaint it is only stated

that accused­2 broke open the lock of that house where Siddaraju

was kept and then it is the accused­1 who assaulted him on his

head by axe and caused his death. But in evidence PW1 states that

accused­2   had   brought   MO9   axe   and   assaulted   him.   He   gave

another version by stating that MO7 chopper was in the hand of

accused­2 Thimma. PW4 states that accused­2 assaulted with axe.

In  this   way  about   the   overt   act   done   by   accused­2,   there   are

different version and because of it their evidence is not acceptable. 

10. PW1 states accused assaulted her also and she sustained

bleeding injury on her head and she was assaulted with club by

one   Ashwatha   and   she   took   treatment   of   Government   hospital

Channapatna. In my opinion, this is only an exaggeration because,

it is not stated in the complaint about assaulting her and there is

no   medical   evidence   to   show   that   she   was   treated   at

Channapatana hospital.

11. The fact that the eye witnesses PW1 and PW4, does not

speak   about   the   presence   of   many  of   the   accused   persons   as

discussed   above   corroborates   the   inference   that   some   of   the

accused persons are falsely implicated. Hence, all is not well in the

prosecution case and it raises substantial doubt and the accused

will be entitled to benefit of doubt.”

12. On the basis of the above findings, the Sessions Court acquitted

all the 22 accused except those against whom the charges abated.

Therefore, the State filed two appeals, one of which was against 17

accused and the other against 2 accused.   The appeal in Criminal

Appeal No.1591 of 2001 was against the acquittal of A­7 and A­8 and

the other appeal, Criminal Appeal No.1590 of 2001 was against the

acquittal of A­1 to A­3, A­5, A­6, A­9 to A­16, A­18, A­19, A­21 and A22.

13. The High Court dismissed the State’s appeal Criminal Appeal

No.1591 of 2001, thereby confirming the acquittal of A­7 and A­8. In

the other appeal, namely, Criminal Appeal No.1590 of 2001, the High

Court confirmed the acquittal of all the other accused except A­1 and

A­2. In other words, this appeal was partly allowed and A­1 and A­2

were convicted only for the offences under Section 302 IPC.

14. As a matter of fact, the charges under Sections 143, 144, 148,

147 and 448 read with Section 149 were all gone even against   A­1

and   A­2   who   are   the   appellants   herein.   A­1   and   A­2   have   been

convicted by the High Court only for the offence under Section 302

IPC.

15. To come to the aforesaid conclusions, the High Court pointed out

(i)  the inconsistencies in the evidence of PW­1 and PW­4, insofar as

the role played by all the accused other than A­1 and A­2; (ii) that the

trial Court committed an error in acquitting all the 22 persons merely

because PW­1 did not name all of them; (iii) that the principle “falsus

in uno falsus in ominbus”, cannot be invoked in cases of this nature;

and (iv) that there was consistency in the evidence of PW­1 and PW­4

with regard to the participation of A1 and A2 in the commission of the

offence.

16. The crucial portion of the findings of the High Court for holding

the appellants guilty of the offence under  Section 302 IPC reads as

follows:­

“We find consistency in the evidence of PW­1 and PW­4 with

regard to the participation of A1 and A2 in the commission of

the offence. Both have deposed and have stated A1 and A2

broke open the door of the house, A1 dragged Siddaraju from

the   house,   hacked   him   with   a   sickle   on   the   face   and

thereafter   A2   with   axe   assaulted   on   the   head   of   the

deceased. The same also finds a place in the complaint. As

such, this part of evidence of PW­1 and PW­4 is reliable and

Trial Court erroneously acquitted A1 and A2 when there was

sufficient material on record to hold them guilty.”

17. But the above findings of the High Court appear to be illogical. The

primary charge of the prosecution was that all the 22 accused, formed

themselves into an unlawful assembly with the common object of

committing the murder of the deceased and that all of them being

members of the unlawful assembly were armed with deadly weapons

like clubs, bettu kudli, kodli etc. and that they committed the offence

of rioting, trespass and murder. All these charges have now been held

not proved against all the accused including A­1 and A­2 and the only

offence held proved against A­1 and A­2 is the one under Section 302

IPC.  We do not know how, in the facts and circumstances of the case,

the conviction of only 2 out of the 22 accused can be sustained and

that too only for the offence under Section 302 when the allegation of

unlawful assembly, common object, trespass, rioting etc.  are held not

proved against all of them. The State has not come up with any appeal

against the acquittal of all the other accused.

18. Moreover, there was also no explanation as to why there were two

First Information Reports. According to PW­13, the Sub­Inspector of

Police,   he   received   the   oral   complaint   of   PW­1   at   00.45   hrs.   on

01.12.1997 and he claims to have recorded the complaint, registered

the same as Crime No.182/1997 and sent the same to the Court. This

FIR was marked as Exhibit P­8.

19. According to the same witness PW­13, the wife of the deceased by

name   Nagamma   gave   a   written   complaint   at   the   hospital.   It   was

marked as Exhibit P­9. PW­13 claimed that thereafter he registered a

second FIR by including the offences under the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, 1989. This FIR was

marked   as   Exhibit   P­7.   PW­13   further   claimed   that   the   further

investigation of the second FIR was entrusted to the CPI, as the same

related to serious offences.

20. The CPI was examined as PW­14. In his cross­examination he did

not make a whisper as to what happened to the second FIR. All that

he stated was that he took the statement of Nagamma (wife of the

deceased who gave the second complaint) only at the time of inquest

proceedings from 7:00 a.m. to 10 a.m.

21. As stated earlier, Nagamma was cited as one of the witnesses in

the Charge­Sheet, but she was not examined as a witness during trial.

The High Court has recorded that her whereabouts were not known

and that, therefore, she could not be examined. Such an explanation

is not found in the testimony of PW­14

22. It is true that the principle “falsus in uno falsus in omnibus” may

not have unadulterated application to criminal jurisprudence.   The

Courts have always preferred to do what Hamsa, the mythological

Swan, is believed to do, namely, to separate milk and water from a

mixture of the two1

. In  Arvind   Kumar   @   Nemichand  &   Ors.   vs.

State of Rajasthan2

,        M.M. Sundresh J. speaking for the bench

crystallized this principle as follows:

“49. The principle that when a witness deposes falsehood,

the evidence in its entirety has to be eschewed may not have

strict   application   to   the   criminal   jurisprudence   in   our

country.  The principle governing sifting the chaff from the

grain has to be applied.   However, when the evidence is

inseparable and such an attempt would either be impossible

or   would   make   the   evidence   unacceptable,   the   natural

consequence would be one of avoidance.  The said principle

has not assumed the status of law but continues only as a

rule of caution.  One has to see the nature of discrepancy in

a   given   case.     When  the   discrepancies   are   very   material

shaking   the   very   credibility   of   the   witness   leading   to   a

conclusion in the mind of the court that is neither possible

to separate it nor to rely upon, it is for the said court to

either accept or reject.”

23. Therefore, the High Court was right on first principles that the

evidence of PW­1 and PW­4 cannot be rejected by invoking the theory

of falsus in uno falsus in omnibus.

24. But when there are glaring contradictions between the testimony

of even these two witnesses on the type of material object used and

even   on   the   role   of   A­2,   the   very   foundation   of   the   case   of   the

prosecution stood shaken.

25. As a matter of fact, the Trial Court took note of the absence of

evidence relating to the injuries suffered by PW­1. Nothing was stated

1 The idiom “sifting the chaff from the grain” has become very old and worn out and requires

replacement

2 2021 SCC Online SC 1099

by PW­1 in the FIR, about the injuries on her body, but she spoke

about it in her evidence. Even the same was not corroborated by

medical evidence. This is why the Trial Court disbelieved the evidence

of PW­1 and PW­4.

26. To   overturn   such   a   verdict   of   acquittal,   handed   over   by   the

Sessions Court after disbelieving PW­1 and PW­4, the High Court

should have come up with more stronger and cogent reasons than

what has been recorded. The law on the scope of Section 378 of the

Cr.P.C., is too well settled. Very recently this Court traced the law in

Ravi Sharma vs. State (Government of NCT of Delhi) & Another3

.

The impugned judgment of the High Court is not in accordance with

the law on the point.

27.  In such circumstances, we are of the considered view that the

conviction   of   the   appellants   herein   by   the   High   Court   cannot   be

sustained.   Therefore,   the   appeal   is   allowed   and   the   impugned

judgment of the High Court insofar as it relates to the conviction of

appellants is set aside. The appellants shall be released forthwith,

unless they are suffering incarceration in connection with any other

case. No costs. 

....…………....................J.

 (Indira Banerjee)

  …..………......................J.

3 2022 SCC Online SC 859

(V. Ramasubramanian)

AUGUST 10, 2022

NEW DELHI

ITEM NO.1501 COURT NO.6 SECTION II-C

 S U P R E M E C O U R T O F I N D I A

 RECORD OF PROCEEDINGS

Criminal Appeal No. 1697/2011

RAMABORA@RAMABORAIAH & ANR. Appellant(s)

 VERSUS

STATE OF KARNATAKA Respondent(s)

IA No. 19590/2019 - EXEMPTION FROM FILING O.T. IA No. 30236/2022 -

GRANT OF BAIL IA No. 51251/2022 - PERMISSION TO FILE ADDITIONAL

DOCUMENTS/FACTS/ANNEXURES IA No. 19588/2019 - PERMISSION TO FILE

ADDITIONAL DOCUMENTS/FACTS/ANNEXURES)

Date : 10-08-2022 These matters were called on for pronouncement of

judgment today.

For Appellant(s) Mr. Krishna Pal Singh, AOR

Mr. Seemab Qayyum, Adv.

Ms. Aprajita Anvita, Adv.

Mr. Madhvendra Singh, Adv.

Mr. Mohan Singh Bais, Adv.

Mr. Ashwin V. Kotemath, Adv.

Mr. Harisha S.R., AOR

For Respondent(s) Mr. V. N. Raghupathy, AOR

Hon’ble Mr. Justice V. Ramasubramanian pronounced the judgment

of the Bench comprising Hon’ble Ms. Justice Indira Banerjee and His

Lordship.

The appeal is allowed in terms of the signed reportable

judgment and the impugned judgment of the High Court insofar as it

relates to the conviction of appellants is set aside. The

appellants shall be released forthwith, unless they are suffering

incarceration in connection with any other case. No costs.

Pending applications, if any, shall stand disposed of.

(MANISH ISSRANI) (MATHEW ABRAHAM)

COURT MASTER (SH) COURT MASTER (NSH)

(SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE)