SHANTHAMALLESHAPPAversusSTATE OF KARNATAKA

1152                SUPREME[2018]
                            COURT 14 REPORTS
                                     S.C.R. 1152           [2018] 14 S.C.R.


 A                        SHANTHAMALLESHAPPA
                                         v.
                            STATE OF KARNATAKA
                    (Criminal Appeal Nos. 1583-1584 of 2018)
 B                            DECEMBER 10, 2018
          [UDAY UMESH LALIT AND R. SUBHASH REDDY, JJ.]
              Penal Code, 1860 – s.436 r/w. s.34 – Prosecution case was
       that accused no. 1 along with accused no.2 to 4 threw kerosene oil
       on the thatched shed situated in front of the house of PW-1(sister-
 C
       in-law of accused no.1) and after setting it on fire, all accused fled
       away from the scene on motor cycles – Trial Court convicted all the
       four accused u/s. 436 r/w. s.34 of IPC and imposed fine of
       Rs.10,000/- on accused no.1 and imposed a fine of Rs.5000/- on
       accused nos.2 to 4 – High Court enhanced the sentence on accused
 D     no.1 to simple imprisonment for a period of six months and a fine of
       Rs.50,000/- and set aside the conviction of accused nos.2 to 4 – On
       appeal, held: There were civil disputes pending between accused
       no.1 and husband of PW-1, and earlier also they had filed
       complaints against each other – In view of such disputes and
       complaints against each other, there was a possibility of implicating
 E
       accused by making false complaint – There were material
       contradictions in the oral evidence adduced on behalf of the
       prosecution and further, except the interested testimony of PWs-1 to
       3, no other independent person was examined as a direct witness to
       the incident – PW-1 and 2 had not stated anything about the
 F     presence of PW-3 and whereas, PW-3 stated that she had also come
       out on hearing cries of PW-1 and 2 – Further, PWs-1 and 2 had
       stated that books and clothes were burnt, contrary to the statement
       recorded in the mahazar in which only partial burning of pedestal
       fan and the roof was stated – PW-7 admitted that nobody was residing
       in the shed which ran contrary to evidence of PWs-2 and 3 wherein
 G
       they stated that PW-1, her husband and children were staying in the
       shed – Material contradictions were not noticed by the trial Court
       as well as the High Court which resulted in perverse findings against
       the accused – Thus, impugned judgments set aside.

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                                       1152
    SHANTHAMALLESHAPPA v. STATE OF KARNATAKA                             1153


      Allowing the appeals, the Court                                    A
       HELD : 1.1 Admittedly, the incident occurred at about 09:30
p.m. on the fateful day. Unless sufficient light was there it was
not possible to identify the accused. It was not the case of the
prosecution that the witness had seen the accused persons in
the light emanated from the fire. There are material contradictions      B
in the evidence of PW-1 and PW-2 and the contents of the mahazar.
In the deposition, PWs-1 and 2 have stated that books and cloths
were burnt, contrary to the statement recorded in the mahazar in
which only partial burning of the pedestal fan and the roof is stated.
In the mahazar drafted, there is not a whisper about burning of
books and clothes, and the burning of fan is conspicuously absent        C
in the evidence of witnesses. It is the case of the prosecution
that accused after setting on fire the thatched shed, fled
away on the motor cycles but there was no identity of any of the
motor cycles by registration number etc. PW-2 is also
silent regarding the presence of PW-3 at the time of incident.           D
[Para 11][1158-A-D]
       1.2 Even according to the case of the prosecution there
were civil disputes pending between the brothers in respect of
family properties and also it is evident from the evidence on
record that 2-3 days prior to the date of incident both the brothers     E
have lodged complaints against each other. In view of such
disputes and complaints registered against each other, there is a
possibility of implicating accused by making a false complaint. It
is also to be noticed that PW-1, in her deposition, has not stated
at all that P.W.-3 has come out of the house at the time of
occurrence of the incident. Contrary to the evidence of PWs-1            F
and 2 who have not spoken about the presence of PW-3, PW-3 in
the oral evidence has stated that she has also come out on hearing
cries of PWs-1 and 2 on the date of incident and witnessed the
incident. [Para 11][1158-C-E; 1158-H; 1159-A]
      2. In the cross-examination, PW-7-Assistant Sub-Inspector          G
categorically admitted that nobody was residing in the shed and
the residential house is separate but the children were using the
shed for studies. Said evidence of PW-7 runs contrary to the

                                                                         H
1154               SUPREME COURT REPORTS                   [2018] 14 S.C.R.


 A     evidence of PWs-2 and 3 wherein they have stated that PW-1,
       her husband and children were staying in the shed. To prove
       that, PWs-1 to 3 were residing in the village and whereas the
       shed in question is situated in the farmhouse of PW-1’s husband,
       in the appeal before the High Court documentary evidence was
       filed and said documents were marked as Ex.D1 to D4. Though
 B
       the said documents were received and referred to but such
       documentary evidence is not considered at all by the High Court.
       [Para 11][1159-C-E]
             3. There are material contradictions in the oral evidence
       adduced on behalf of the prosecution and further, except the
 C     interested testimony of PWs-1 to 3, no other independent person
       is examined as a direct witness to the incident. In view of the
       material contradictions in the evidence of PWs-1 to 7 and the
       documentary evidence, filed before the appellate court, which is
       not considered at all, the trial court as well as the appellate court
 D     has committed serious error in arriving at the conclusion that
       accused no.1 has committed the offence punishable under Section
       436 IPC. The material contradictions as referred to above were
       not noticed by the trial court as well as the High Court which
       resulted in perverse findings against the accused for recording a
       conviction against him and to impose the sentence. Considering
 E     the entire evidence on record, and having regard to peculiar facts
       of the case, if the impugned judgments are allowed to stand it will
       lead to a miscarriage of justice, as such, impugned judgments
       are liable to be set aside. [Para 12][1159-E-H; 1160-A]
             CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
 F     Nos. 1583-1584 of 2018.
             From the Judgment and Order dated 28.06.2017 of the High Court
       of Karnataka at Bengaluru in Criminal Appeal No. 531 of 2011 C/w
       Criminal Appeal No. 248 of 2011.

 G           Anand Sanjay M. Nuli, Dharm Singh, Suraj Kaushik, Nand Kumar
       K.B., Prawal Mishra, M/s. Nuli & Nuli, Advs. for the Appellant.
              V. N. Raghupathy, Parikshit P. Angadi, Lagnesh Mishra, Advs.
       for the Respondent.

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    SHANTHAMALLESHAPPA v. STATE OF KARNATAKA                                   1155


      The Judgment of the Court was delivered by                               A
      R. SUBHASH REDDY, J.
      1. Leave granted.
       2. These criminal appeals have been preferred by accused no.1,
in the crime registered on the file of the Chamarajanagar Rural Police         B
Station, in the State of Karnataka aggrieved by the conviction recorded
and sentence imposed in the judgment dated 17th January 2011 passed in
Sessions Case No.59 of 2009 by the learned District & Sessions Judge,
Chamarajanagar and the judgment of the High Court in Criminal Appeal
No.531 of 2011 c/w Criminal Appeal No.248 of 2011 passed on
28.06.2017 by the High Court of Karnataka at Bangalore.                        C

      3. Accused nos.1 to 4 in the aforesaid crime were charged for
offence under Section 436 read with Section 34 of Indian Penal Code
(IPC). The learned District & Sessions Judge, Chamarajanagar has
convicted all the four accused for the offence under Section 436 read
with Section 34 IPC and imposed the fine of Rs.10,000/-, in default, to        D
undergo simple imprisonment for two months on accused no.1 and
imposed a fine of Rs.5,000/- on accused nos.2 to 4, in default, to undergo
simple imprisonment for a period of one month.
       4. Aggrieved by the conviction recorded and fine imposed, accused
have filed Criminal Appeal No.531 of 2011 and the State of Karnataka           E
has preferred Criminal Appeal No.248 of 2011 seeking enhancement of
punishment, before the High Court. The High Court, by judgment dated
28th June 2017, allowed the appeal, filed by the accused, in part by setting
aside the conviction recorded and fine imposed on accused nos.2 to 4
and allowed the appeal of the State by imposing the sentence on accused        F
no.1 to undergo simple imprisonment for a period of six months and to
pay a fine of Rs.50,000/-, and in default of payment of fine, accused
no.1 has been ordered to undergo simple imprisonment for a further
period of 1½ months.
      5. The case of the prosecution was that accused no.1 is the elder
                                                                               G
brother of husband of PW-1 Smt. Manjula Devi. It is alleged that there
were civil disputes among the brothers with regard to the family property.
On the day of Shivratri festival on 23.02.2009 at about 08:30 p.m.,
when the husband of PW-1 had gone to temple, when PW-1 along with
her mother and children were in house, at about 09:30 p.m., accused
no.1 along with accused nos.2 to 4 threw kerosene oil on the thatched          H
1156                 SUPREME COURT REPORTS                       [2018] 14 S.C.R.


 A     shed situated in front of the house of PW-1 and set it on fire. It was
       alleged in the complaint lodged before the police under Ex.P1 that all the
       accused have committed the offence, as such, all were charged for
       offence punishable under Section 436 read with Section 34 IPC. It was
       alleged that after setting the thatched shed on fire, all the accused fled
       away from the scene of occurrence on motor cycles.
 B
             6. It is the case of the prosecution that on receiving the information,
       PW-7 the ASI, Chamarajanagar Rural Police Station, rushed to the spot
       and received the written complaint from PW-1 and on its basis registered
       the case against accused nos.1 to 4. On completion of investigation,
       chargesheet was filed against accused nos.1 to 4 for the offence
 C     punishable under Section 436 IPC read with Section 34 IPC. The accused
       denied the charges and claimed trial.
             7. To prove the charges framed against the accused, the
       prosecution examined seven witnesses and marked Ex.P1 to P3. Upon
       hearing learned Public Prosecutor and counsel for the accused, learned
 D     Sessions Judge found all the accused guilty of the alleged crime and
       recorded conviction and imposed sentence of fine.
              8. Pleading that the fine imposed on the accused is not in conformity
       with Section 436 of IPC, for the enhancment of punishment, State filed
       appeal and questioning the conviction recorded and fine imposed, accused
 E     nos.1 to 4 have also preferred appeal. Before the appellate court, additional
       documents were filed along with application under Section 391, Cr.P.C.
       The said application was allowed and documents were marked as Ex.D1
       to D4. The High Court, by referring to the oral and documentary evidence
       on record, has partly allowed the appeal of the accused and set aside the
 F     conviction recorded against accused nos.2 to 4 and also allowed the
       appeal of State and enhanced the sentence imposed on accused no.1 to
       simple imprisonment for six months and a fine of Rs.50,000/-, in default
       to undergo simple imprisonment for a further period of 1½ months.
             9. In these appeals, we have heard Mr. Anand Sanjay M. Nuli,
 G     learned counsel appearing for the appellant-accused and Mr. V.N.
       Raghupathy, learned counsel appearing for respondent-State. It is
       contended by learned counsel for the appellant that though there is no
       acceptable evidence on record, the trial court and the appellate court
       have erroneously recorded conviction and imposed the sentence. It is
       submitted that except the interested testimony of PWs-1 to 3 no other
 H     independent eye witnesses have been examined to prove the charge. It
    SHANTHAMALLESHAPPA v. STATE OF KARNATAKA                                     1157
             [R. SUBHASH REDDY, J.]

is further submitted that though there were material contradictions in the       A
oral evidence of PWs-1 to 5 said evidence was not properly considered
by the trial court as well as the High Court. It is submitted that even
before the appellate court though additional evidence is filed along with
application under Section 391 of the Cr.P.C., such documentary evidence
is not considered by the High Court. It is contended that though the
                                                                                 B
State has failed to prove the guilt of the accused beyond reasonable
doubt, the conviction is recorded and sentence is imposed on the appellant-
accused no.1. On the other hand, it is the case of the State that the oral
evidence of PWs-1 to 5 is consistent and same is sufficient to record the
conviction against the appellant. It is submitted that in view of the property
disputes among the brothers, accused no.1 along with accused nos.2 to            C
4 have intentionally set fire to the dwelling house, as such, the trial court
as well as the High Court rightly recorded the conviction and imposed
the sentence. It is submitted that the Sessions Judge, even after recording
conviction of the accused under Section 436 read with Section 34 IPC,
has simply imposed only fine on the accused and the same is contrary to
                                                                                 D
Section 436 IPC. As such, State has preferred the appeal which is
rightly allowed by the High Court by imposing the sentence of six months
and fine of Rs.50,000/-. It is submitted that there are no grounds to
interfere with the said conviction recorded and sentence imposed.
       10. Having heard learned counsel on both sides, we have perused
the material on record and also oral evidence which is placed on record          E
in the paper book.
       11. PW-1 Smt. Manjula Devi, who was the complainant is the
sister-in-law of accused no.1. It was her case that on 23.02.2009 on
Shivratri festival day when her husband has gone to temple, she was in
the house along with her mother and children. The son of PW-1 Abhijith           F
was examined as PW-2 and mother of the accused was examined as
PW-3. PW-1, in her evidence, has stated that on the date of incident, on
hearing the sound of dog barking, when she went out along with her son,
PW-2, they saw accused no.1 holding kerosene can and remaining
accused were with him and the accused no.1 threw kerosene oil on the             G
thatched shed and set it on fire. PW-1, in her deposition, has not said
about the presence of PW-3 at all. In the complaint filed before the
police it is alleged that five persons including the accused have committed
the offence but coming to the chargesheet only accused nos.1 to 4 were
chargesheeted. PW-1 stated in her complaint under Ex.P1 that she
                                                                                 H
1158                 SUPREME COURT REPORTS                      [2018] 14 S.C.R.


 A     became alert on hearing the sound of motor cycles but coming to her
       deposition she has stated that on hearing the dog barking she has come
       out of the house and witnessed the incident. Admittedly, the incident
       occurred at about 09:30 p.m. on the fateful day. Unless sufficient light
       was there it was not possible to identify the accused. It was not the
       case of the prosecution that witness had seen the accused persons in
 B
       the light emanated from fire. There are material contradictions in the
       evidence of PW-1 and PW-2 and the contents of the mahazar. In the
       deposition, PWs-1 and 2 have stated that books and cloths were burnt,
       contrary to the statement recorded in the mahazar in which only partial
       burning of the pedestal fan and the roof is stated. In the mahazar drafted,
 C     there is not a whisper about burning of books and cloths, and the burning
       of fan is conspicuously absent in the evidence of witnesses. It is the
       case of the prosecution that accused after setting on fire the thatched
       shed, fled away on the motor cycles but there was no identity of any of
       the motor cycles by registration number etc. PW-2 is also silent regarding
       the presence of PW-3 at the time of incident. Even according to the
 D
       case of the prosecution there were civil disputes pending between the
       brothers in respect of family properties and also it is evident from the
       evidence on record that 2-3 days prior to the date of incident both the
       brothers have lodged complaints against each other, basing on which
       crimes were registered being Crime Nos.36 of 2009 and 37 of 2009 on
 E     20.02.2009 for the offences punishable under Sections 323, 324, 341,
       504, 506 read with 34 IPC. In view of such disputes and complaints
       registered against each other, there is a possibility of implicating accused
       by making a false complaint. It is also to be noticed that PW-1, in her
       deposition, has not stated at all that P.W.-3 has come out of the house at
       the time of occurrence of the incident. In the cross-examination, she
 F
       has also admitted that accused no.1 is working in Sericulture department
       and residing in the places where he was posted. A suggestion was also
       put to her stating that accused no.1 is a Joint Director of Sericulture
       working and residing at Mysore and he is not residing in the village of
       Badanaguppe. PWs-2 and 3 in their depositions have stated that they
 G     were staying in the outhouse. It is the case of the accused that the said
       outhouse is situated in the farm house and the distance between the
       farm house and Badanaguppe village is about 1 Kilometer. PW-2, in the
       cross-examination, has categorically admitted that the Kuteera was put
       up in the farmhouse and the distance between the farmhouse and
       Badanaguppe village is about 1 Kilometer. Contrary to the evidence of
 H
    SHANTHAMALLESHAPPA v. STATE OF KARNATAKA                                 1159
             [R. SUBHASH REDDY, J.]

PWs-1 and 2 who have not spoken about the presence of PW-3, PW-3             A
in the oral evidence has stated that she has also come out on hearing
cries of PWs-1 and 2 on the date of incident and witnessed the incident.
PW-4, who claims to be resident of the village, was also examined on
behalf of the prosecution. In his evidence, he has stated that PW-1 and
her husband were residing in the farm house since last 3-4 years but at
                                                                             B
the same time in the cross-examination he has stated that he is a good
friend of husband of PW-1 and both are Bhartiya Janata Party workers.
PW-5 is the panch witness to the mahazar. In the cross-examination he
has clearly admitted that even by the time he went to the scene of
occurrence police were preparing mahazar. A suggestion was put to
PW-5 that himself and husband of PW-1 are in cordial terms. PW-7, the        C
Assistant Sub-Inspector in his deposition has categorically stated that on
receiving the call from the Badanaguppe village that shed situated in the
garden of Manjunatha, husband of PW-1 has caught fire, he went to the
spot and by that time shed was burnt. In the cross-examination, PW-7
categorically admitted that nobody was residing in the shed and the
                                                                             D
residential house is separate but the children were using the shed for
studies. Said evidence of PW-7 runs contrary to the evidence of PWs-2
and 3 wherein they have stated that PW-1, her husband and children
were staying in the shed. To prove that, PWs-1 to 3 were residing in the
village and whereas the shed in question is situated in the farm house of
PW-1’s husband, in the appeal before the High Court documentary              E
evidence was filed and said documents were marked as Ex.D1 to D4.
Though the said documents were received and referred to but such
documentary evidence is not considered at all by the High Court.
       12. There are material contradictions in the oral evidence adduced
on behalf of the prosecution and further, except the interested testimony    F
of PWs-1 to 3, no other independent person is examined as a direct
witness to the incident. In view of the material contradictions in the
evidence of PWs-1 to 7 and the documentary evidence, filed before the
appellate court, which is not considered at all, we are of the view that
the trial court as well as the appellate court has committed serious error
in arriving at the conclusion that accused no.1 has committed the offence    G
punishable under Section 436 IPC. The material contradictions as referred
to above were not noticed by the trial court as well as the High Court
which resulted in perverse findings against the accused for recording
conviction against him and to impose the sentence. Considering the
entire evidence on record, and having regard to peculiar facts of the        H
1160                SUPREME COURT REPORTS                     [2018] 14 S.C.R.


 A     case, we are of the view that if the impugned judgments are allowed to
       stand it will lead to miscarriage of justice, as such, impugned judgments
       are liabale to be set aside.
             13. For the aforesaid reasons, we find merit in these appeals.
       Accordingly, these criminal appeals are allowed by setting aside the
 B     conviction recorded and sentence imposed in the judgment dated
       17.01.2011 in Sessions Case No.59 of 2009 on the file of District &
       Sessions Judge, Chamarajanagar and the judgment of the High Court
       dated 28.06.2017 in Criminal Appeal Nos.531 of 2011 and 248 of 2011.
       Resultantly, the appellant-accused is acquitted of the charge and the bail
       bonds, if any, furnished by the appellant-accused stand discharged. The
 C     appellant-accused is entitled for refund of the fine amount deposited by
       him.

       Ankit Gyan                                                  Appeals allowed.


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