DATE OF JUDGEMENT:
7th May 2021
JUDGES:
N.V. Ramana, C.J. and Surya Kant and Aniruddha Bose, JJ.
PARTIES:
Mallappa(Plaintiff)
State of Karnataka(Respondent)
AN OVERVIEW
1. The appellant (Mallappa) was accused of fratricide and the murder of his brother Earappa on April 19th-20th, 1999, just after midnight.
2. Veeresh, his son, was a co-accused. Both were acquitted by the Trial Court of the charges brought against them under Section 302 read with Section 34 of the Penal Code, 1860.
3. In an appeal against the State of Karnataka's acquittal judgement, the High Court of Karnataka overturned the Trial Court's decision and convicted Mallappa of the crime punishable under Section 302 of the Code. A sentence of life imprisonment was imposed on him. Mallappa has filed an appeal against the judgement of conviction and order of sentence entered on June 11, 2008.
4. The High Court admitted the proceedings. The case was accepted. Appellant (described in trial as A1 and his son Veerappa as A2) assassinated the deceased Earappa with a club, while he slept in "angala" (frontyard) at his home in the village of Sidrampur, Taluk Sindhanur in the State of Karnataka.
5. The prosecution projected a prior conflict between the appellant and the deceased victim over some immovable assets and canal water, as the reason for the crime. According to the testimony of the prosecution witnesses, the deceased victim was sleeping in his front yard with two of his daughters, his wife, Bassamma at the time of the attack. Shivarayappa, another brother of the deceased, awoke to the cries of his wife and daughter and saw the two accused persons fleeing.
6. This site will be referred to as place of occurrence (PO)
7. When he arrived at the PO, he discovered the deceased was bleeding from his nose and ear. Then he dashed his sister's husband, who also goes by the name Earappa. He went to the PO and fetched the local doctor, Mallikarjuna, from the EARAPPA's home. He pronounced the deceased dead after examining him. EARAPPA, SHIVARAYAPPA, and one Bassappa then hired a jeep and drove to the Sindhnur police station to report the crime. According to Sanna Hassan Sab who reported the complaint as P.S.I at that police station and on the basis of which the F.I.R. was filed, they arrived at the police station about 4 a.m. on April 20th, 1999.
8. According to the autopsy surgeon, Dr. Venketesh Y. Earappa died as a result of intracranial haemorrhage and shock. He discovered an external damage on the right occipital protuberance 3 12′′, which was lacerated. According to his examination-in-chief, he believed that such an injury could be caused by an iron rod or lathi. However, during cross-examination, he claimed that such an injury could occur if an individual fell downwards on a hard surface.
9. The prosecution case was based mainly on the testimony of BASSAMMA, an eyewitness, and the depositions of SHIVARAYAPPA and Bhogappa, both of whom testified as post-occurrence witnesses. They reported to have seen the appellant fleeing, and the place where they saw him was in front of JeeralDevendrappa's home. In her examination-in-chief, BASSAMMA claimed that she witnessed A1 beating her deceased husband's head with a club. However, during her cross-examination, she said that she saw the accused individual near Devendrappa's home.
10. The prosecution have tried to build their case against the appellant by recovering the assault weapon—the club—from the accused's residence. In his deposition, SANNA HASSAN SAB, who conducted the inquest, reported that he seized a small piece of wooden club from the scene of the incident, as well as barkha, pillow, jamkhana, blood stained mud, and sample mud. In the Mahazar, this was mirrored.
11. Material Object (M.O.) 6 was assigned to the club, while M.O.10 was assigned to the small wooden item.SHIVARAYAPPA and BASSAMMA, according to the Trial Court, improved the prosecution argument, which was not reported before the police. The Trial Judge considered SHIVARAYAPPA and BASSAMMA's testimony to be exaggerated and inconsistent with the prosecution's story. The prosecution's story of attack and murder of the deceased victim Earappa did not persuade him, and he acquitted both accused persons. The fact that Devendrappa's house was not accessible from the scene of the crime was also a factor in the Trial Court's decision. Furthermore, the assault weapon was not shown to the autopsy surgeon, nor was it sent to an expert for an opinion on whether M.O.-6 and M.O.-10 matched to shape the same club.
IMPORTANT PROVISION
• Section 302 and Section 34 of the Indian Penal Code
ANALYSIS OF THE JUDGEMENT
1. The high court previously stated that BASSAMMA's proof cannot be believed in its entirety. There are inconsistencies in BASSAMMA's deposition when it comes to seeing Mallappa at the scene of the crime. She claimed in her cross-examination, that the accused persons were in front of Devendrappa's house when she saw them. SHIVARAYAPPA and BHOGAPPA both have this proof. The inconsistencies in her testimony about Honappa's presence at the PO on the night of the incident can be overlooked because they have no bearing on the case.
2. However, her inconsistent comments on when and where she saw the appellant, as well as whether or not she saw him commit the attack, are important. In her cross-examination in chief, she testified that when she opened her eyes after hearing the sound "dhup," she saw A1 (the appellant) assaulting her husband's head with a club, while A2 (Veerappa) stood beside him. However, as we saw earlier in her cross-examination, she confirmed that she had been injured by the time she awoke. She said she saw the suspect in front of Devendrappa's home.This portion of her cross-examination deposition is otherwise aligned with the remainder of her cross-examination claims. Only one inference is plausible in this situation: she was not a witness to a real act of attack. She is the wife of the deceased victim, and she needs to be treated with sympathy. She does not, however, inspire confidence as a witness.
3. BASSAMMA testified that the houses of Hussainamma and Devendrappa are not visible from her home, which the Trial Court agreed with. On this basis, it was decided, citing SHIVARAYAPPA and BASSAMMA's evidence:
a. This was a factual finding regarding the appellant's potential visibility, who, according to the indictment, was fleeing with his accused son. The High Court, on the other hand, made a finding on this count in paragraph 9 of its earlier-mentioned judgement. We do not believe the High Court erred in rejecting the said finding of fact based on facts that was "not of value" and "irrelevant" in the judgement under appeal.Because of her conflicting claims, we cannot accept BASSAMMA's account of being an eyewitness to the incident. Apart from the discovery of the club, the appellant's involvement, according to the indictment, appears from him being seen while running away from the scene of the crime by the aforementioned three witnesses at the same spot. Evidence of whether the location is visible from the locations where PW Nos. 3 and 6 were at the relevant time cannot be dismissed as insignificant.
b. Srinivas (SRINIVAS), the seizure witness, confirmed that the club was not broken in his deposition, which we have already reproduced. EARAPPA also deposed on the spot panchanama, which was taken by the police on the morning of April 20, 1999, from the scene of the incident. He also says nothing about the club's broken piece being seized. These two prosecution witnesses contradict SANNA HASSAN SAB, the inquest officer, who said that he had confiscated a small piece of wooden club during his investigation. The club was not shown to Dr. Venkatesh Y (DR. VENKETESH Y.) the autopsy surgeon. From his deposition, it appears that this is not the case.The club is a common implement that can be found at random in rural households throughout the country, and in the absence of any cogent proof showing that the club seized was used to attack the deceased, the prosecution's story attempting to create commission of the crime by circumstantial evidence of discovery of the weapon of assault fails.
4. If the prosecution's version, that the SHIVARAYAPPA, BASSAMMA, and BHOGAPPA could and did see the appellant running in front of Devendrappa's house from their respective positions at the time of the incident, had been believed, the only evidence we would have had would have been two accused persons seen running away. That would have been insufficient proof to prosecute anyone under art 302 of the Code, using the res gestae principle. The defendant was acquitted by the first Court of Facts based on proof appreciation. We do not see any significant flaws in its logic that would have required the Appeal Court to intervene in reversing such a finding of guilt.
5. For these reasons, the Supreme Court vacates the High Court of Karnataka's judgement dated 11th June, 2008 in Criminal Appeal No. 1232 of 2001 convicting the appellant and the subsequent order of sentence. The Supreme Court upheld the Trial Court's decision to acquit Mallappa (A1). According to the records, the appellant's sentence was suspended by an order of this Court issued on January 29, 2016, and the appellant's request for bail was granted. Furthermore, the Supreme Court ordered that the bail bonds be discharged.
