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Supreme Court of India
Mallappa vs State Of Karnataka on 7 May, 2021Author: 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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