MALLAPPAversusSTATE OF KARNATAKA

                          [2021] 5 S.C.R. 1                                1


                            MALLAPPA                                       A
                                   v.
                     STATE OF KARNATAKA
                 (Criminal Appeal No. 1993 of 2010)
                            MAY 07, 2021                                   B
           [N. V. RAMANA, CJI, SURYA KANT AND
                     ANIRUDDHA BOSE, JJ.]
       Penal Code, 1860 – s.302 – Murder – Deceased was allegedly
assaulted with a club – Prosecution case primarily based on evidence
of PW5 (deceased’s wife) – Trial court acquitted accused-appellant         C
as well as the co-accused – Acquittal of appellant reversed by High
Court – Conviction of appellant challenged – Held: On facts,
evidence of PW5 cannot be accepted in full – There were
contradictions in PW5’s deposition as regards her having seen
appellant at the spot of occurrence – PW5 was not a witness to             D
actual act of assault – As a witness, she did not inspire confidence
– No cogent evidence demonstrating that the club seized was used
to assault the deceased – Proof of commission of offence by
circumstantial evidence of discovery of club- the weapon of assault,
not acceptable – Even if prosecution case that accused persons
were seen by PWs is accepted, that would be too thin a piece of            E
evidence to convict appellant u/s.302 IPC applying the principle of
‘res gestae’ – The first court of facts (trial court) on appreciation of
evidence had acquitted the appellant – No major lacuna in its
reasoning which would have warranted interference by the Appeal
Court (High Court) for reversing such finding into that of guilt –         F
Acquittal of appellant by trial court accordingly sustained.
      Evidence – Possible visibility of accused – Relevance of –
Murder case – Three PWs deposed to have seen the accused persons
at the same location while running away from the place of
occurrence – Held: Evidence on whether that location was visible
                                                                           G
from the spots PWs were at the material point of time, cannot be
discarded as being irrelevant.
      Evidence – Res Gestae – Murder case – Three PWs deposed
to have seen accused-appellant and the co-accused at the same
location while running away from the place of occurrence – Held:
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                                   1
2            SUPREME COURT REPORTS                      [2021] 5 S.C.R.


A   On facts, even if the two accused persons were so seen by the PWs,
    that would be too thin a piece of evidence to convict appellant u/
    s.302 IPC applying the principle of ‘res gestae’ – Doctrines /
    Principles – Principle of ‘res gestae’ – IPC – s.302.
          Evidence – Circumstantial Evidence – Discovery of weapon
B   of assault – Murder – Death allegedly caused due to assault with a
    club – Seizure of club – Effect and relevance of – Held: Club is a
    common implement which can be found at random in rural
    households – On facts, there was absence of cogent evidence
    demonstrating that the club seized was used to assault the deceased
    – Thus, prosecution story, seeking to establish commission of offence
C   by circumstantial evidence of discovery of club - the weapon of
    assault, not acceptable.
          Allowing the appeal, the Court
           HELD : 1. The evidence of PW-5, the deceased’s wife,
D   cannot be accepted in full. There are contradictions in PW-5’s
    deposition as regards her having seen the Appellant at the spot
    of occurrence. She stated in her cross-examination that by the
    time she saw the accused persons, they were in front of the house
    of Devendrappa. That was the evidence of PW-3 and also PW-6.
    PW-5’s contradictory statements as regards when and where she
E   saw the appellant and as to whether she saw him committing the
    act of assault was of significance. In her examination in chief, she
    deposed that when she opened her eyes on hearing the sound
    “dhup”, she saw the appellant with a club assaulting on the head
    of her husband, whereas son of the appellant was standing beside
F   him. But 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 cross-examination was otherwise compatible
    with rest of her statements made in cross-examination. In this
    perspective, only one conclusion was possible that she was not a
G   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 did not inspire confidence.
    [Para 9][8-E-H; 9-A-B]

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            MALLAPPA v. STATE OF KARNATAKA                              3


       2. The Trial Court had found, dealing with evidence of PW-       A
5 that from her house, the houses of Hussainamma and
Devendrappa were invisible. This was a finding of fact about
possible visibility of the appellant, who, as per prosecution version
was running away along with his son. The High Court was not
right in dismissing the said finding of fact based on evidence being
                                                                        B
“not of importance” and “irrelevant”. The account of PW-5 having
been eyewitness of the incident cannot be believed 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.       C
Evidence on whether that location was visible from the spots the
PW Nos. 3 and 6 were at the material point of time could not be
discarded as being irrelevant. [Para 10, 11][9-B-F]
       3. The seizure witness (PW-2) stated that the club was not
broken. PW-1 had also deposed on spot panchanama made by                D
the police on the morning of 20th April, 1999 from the place of
occurrence. He also did not speak of seizure of the broken piece
of club. These two prosecution witnesses did not support the
statement made by PW-8, the inquest officer in his examination
that the latter had seized a small piece of wooden club. The autopsy
surgeon (PW-7) was not shown that club. It did not transpire so         E
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          F
of discovery of the weapon of assault failed. [Para 12][9-G-H;
10-A-B]
      4. Even if the prosecution version that the PW-3, PW-5 and
PW-6 could and did see the appellant running in front of
Devendrappa’s house from the respective positions they were in          G
at the time of occurrence of the incident was accepted, the
evidence the court 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

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4            SUPREME COURT REPORTS                           [2021] 5 S.C.R.


A   302 IPC, applying the principle of res gestae. The first Court of
    facts on appreciation of evidence had acquitted the appellant.
    There is no major lacuna in its reasoning which would have
    warranted interference by the Appeal Court for reversing
    such finding into that of guilt. The judgment of acquittal of
    Appellant by the Trial Court is accordingly sustained. [Para 13,
B
    14][10-B-E]
          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1993 of 2010.
          From the Judgment and Order dated 11.06.2008 of the High Court
C   of Karnataka at Bangalore in Criminal Appeal No. 1232 of 2001.
          S.N. Bhat, Adv. for the Appellant.
          V.N. Raghupathy, Adv. for the Respondent.
          The Judgment of the Court was delivered by
D         ANIRUDDHA BOSE, J.
            1. The appellant (Mallappa) was charged with having committed
    fratricide, murder of his brother Earappa, little beyond the midnight hours
    of 19th-20th April 1999. His son, Veeresh was the co-accused. The Trial
    Court acquitted both of them from the charges under Section 302 read
E   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
    Court of Karnataka set aside the decision of the Trial Court in relation to
    Mallappaand convicted him of the offence 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
F
    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
G   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
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             MALLAPPA v. STATE OF KARNATAKA                                  5
                  [ANIRUDDHA BOSE, J. ]

that the deceased victim was sleeping in the frontyardof his house at a      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 away. As per evidence of
P.W.3, he was sleeping at that point of time outside his house in the
                                                                             B
‘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)    C
to the PO. On examining the deceased, he declared him dead. Thereafter,
P.W.1, P.W.3 and oneBassappa arranged for a jeep and went to
theSindhnur 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
                                                                             D
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 intra-cranial haemorrhage and
shock. He found an external injury, being a lacerated wound on right
occipital protuberance 3 x ½’’. His opinion, as it appears from his          E
examination-in-chief 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
PW-5, who was presented as an eye-witness and the depositionsPW-3            F
and Bhogappa (PW-6), 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 examination-in-chief that
she had seen A1 assaulting on the head of her deceased husband with a        G
club. In her cross-examination, 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.


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6            SUPREME COURT REPORTS                          [2021] 5 S.C.R.


A   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. PW-8, who conducted the inquest, in his
    deposition stated that he had seized a small piece of wooden club from
    the spot of occurrence along with certain other materials-barkha, pillow
    (spelled pillo in the deposition as recorded), jamkhana, bloodstained mud
B
    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(PW-5), in her examination-in-chief had stated that
    after midnight of 19th-20th April, 1999, she had heard a sound which she
C   described as ‘DHUP’.This appears to be a phonetic description of what
    may be called a thudding sound. She also stated in her examination-in-
    chief 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
D   husband with Veerappa (A-2) was standing behind him. In her cross-
    examination, she stated that Honnappawas 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 cross-examination was that by the time she had
    woken up and saw her husband, injuries had been caused. She saw the
E   accused running near the house of Devendrappa. Prosecution sought to
    establish the club as the weapon of assault by matching the wooden
    piece seized atthe house of the appellant with a broken piece the police
    claimed to have had seized from the spot of crime.
          6. PW-2-Srinivas, who was adduced as witness to the seizure of
F   items around the time of inquest in his examination-in-chief stated:-
          “…..From the spot, the police collected blood-stained mud, Barkha,
          Pillo and one Jamkhana, and seized the same. One Virupanna
          signed the spot mahazaralongwith 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
G         is the Jamkhana. M.O.4 is blood-stained 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 blood-stained. Ex. P.3 is
          club seizure mahazar. It bears my signature. M.O.6 is the club
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             MALLAPPA v. STATE OF KARNATAKA                                 7
                  [ANIRUDDHA BOSE, J. ]

      that was seized from the house of A.1. At that time in the house      A
      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.”
                                                                            B
                                                    (quoted verbatim)
      Further, in course of his cross-examination, 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        C
      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.”                                                         D
                                                    (quoted verbatim)
      In his cross-examination he had also specifically stated that the
club was not broken.
       7. The Trial Court found that PW-3 and PW-5 had improved the
                                                                            E
prosecution case, which was not stated before the police. The Trial Judge
found the evidences of PW-3 and PW-5to 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
wasthat Devendrappa’s house was not visible from the place of               F
occurrence. Moreover, the weapon of assault was not produced before
the autopsy surgeon and the same was also not sent to 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:-            G
      “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       H
8            SUPREME COURT REPORTS                            [2021] 5 S.C.R.


A         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.
B         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.
C
          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.
D
          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)
E          9. In our opinion, however, the evidence of PW-5 cannot be
    accepted in full. There are contradictions in PW-5’s deposition as regards
    the P.W.5 having seen Mallappa at the spot of occurrence. She stated in
    her cross-examination, which we have referred to earlier, that by the
    time she saw the accused persons, they were in front of the house of
F   Devendrappa. That is the evidence of PW-3 as also PW-6. 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
G   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
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             MALLAPPA v. STATE OF KARNATAKA                                   9
                  [ANIRUDDHA BOSE, J. ]

Devendrappa’s house. This part of her deposition in her cross-examination     A
is otherwise 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.
                                                                              B
       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 PW-3 and
PW-5:-
      “As observed supra, PW5 admits, that from her house, the house          C
      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       D
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 finding of fact based on evidence being “not of           E
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      F
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 (PW-2), the seizure witness in which he has stated that the club
was not broken. PW-1 has also deposed on spot panchanama made by              G
the police on the morning of 20th 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 PW-8,
the inquest officer in his examination that the latter had seized a small
piece of wooden club. The autopsy surgeon Dr. Venkatesh Y(PW-7)
                                                                              H
10             SUPREME COURT REPORTS                            [2021] 5 S.C.R.


A    was not shown that club. It does not 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.
B
            13. Even if the prosecution version that the PW-3, PW-5 and
     PW-6 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.
C    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
D    into that of guilt.
            14. For these reasons, we set aside the judgment dated 11th 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
E    Trial Court. As we find from the records that the sentence of the appellant
     was suspended by an order of this Court passed on 29th 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
F    application(s), if any, shall stand disposed of.

     Bibhuti Bhushan Bose                                          Appeal allowed.




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