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(2020) AIR(SC) 1407
SUPREME COURT OF INDIA
DIVISION BENCH

SURESHA — Appellant

Vs.

STATE OF KARNATAKA — Respondent

( Before : Sanjay Kishan Kaul and K.M.Joseph, JJ. )
Criminal Appeal No. 2437 of 2009
Decided on : 05-02-2020

Penal Code, 1860 (IPC) - Sections 302 and 304 Part I

Criminal Procedure Code, 1973 (CrPC) - Section 313
Evidence Act, 1872 - Section 154

Penal Code, 1860 (IPC) - Sections 302 and 304 Part I - Criminal Procedure
Code, 1973 (CrPC) - Section 313 - Evidence Act, 1872 - Section 154 - Culpable
homicide not amounting to murder - Trial Court has acquitted the accused
and the High Court has reversed the acquittal - If the Trial Court takes a
reasonable view, interference by the Appellate Court is not justifiable unless
there are really strong reasons for reversing the view. - PW-1's testimony, as
the complaint, is the first story given to the police. He deposes in the same
manner in his examination in chief, but completely turns turtle in the cross-
examination. His deposition in the cross-examination was that he is not even an
eye witness to the incident, but was actually sleeping along with his wife and
daughter and only rushed to the spot on hearing shouts. He further deposed in
his cross-examination to both the police and the brothers of the wife of the
deceased putting pressure on him. The prosecution did not even deem it
appropriate to get him declared hostile, or cross-examine him, a fundamental
infirmity - If the testimonies of PW-2, PW-3 and PW-4 are considered, even if
the testimony of PW-1 is ignored - Different versions emerging about the place
of the incident and as to what actually transpired - There is a grave doubt that
these three persons were actually eye witnesses to the incident - This Court
ignoring the submission of the learned counsel for the appellant that the
prosecution, having failed to declare PW1 hostile, it is not as if the portion of
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his testimony where he turned hostile can be ignored, and it must be

corelatable to the testimonies of PW-2 and PW-4. On that account, in any case,
the testimonies fall apart, from what This Court have recorded aforesaid -
Evidence does not give us confidence that the prosecution has been able to
prove the case of the appellant beyond reasonable doubt, a view which has
found favour with the Trial Court. That being the position, it can hardly be
expected that This Court accept the impugned judgment which actually
reverses the acquittal by the Trial Court - The view taken by the Trial Court is
a plausible view and hardly calls for interference - Impugned order cannot be
sustained and consequently has to be set aside, and the judgment of the Trial
Court is restored, giving the benefit of doubt to the appellant - Appeal allowed.
Counsel for Appearing Parties
Ms. Anitha Shenoy Advocate, Ms. K. V. Bharathi Upadhyaya Advocate, Miss Sanjana Grace
Thomas Advocate for the Appellant; Mr. Manendra Pal Gupta Advocate Mr. V. N. Raghupathy
Advocate for the Respondent
Cases Referred

Aher Raja Khima vs. State of Saurashtra AIR 1956 SC 217

Ghurey Lal vs. State of U.P., (2008) 10 SCC 450
K.Anbazghan vs. Supdt. of Police, (2004) 3 SCC 767

JUDGMENT

Sanjay Kishan Kaul, J. - The appellant was charged with the murder of Lingappa Poojari
(deceased) under Section 302 of the Indian Penal Code. The complainant is Sheshappa
Poojari (PW-1) who lived in a house near to the house of the deceased, along with his wife
Neelamma (PW-4) and his daughter Sumathi (PW-3). The deceased was the cousin brother
of Neelamma (PW-4). The appellant was a native of another village, who was staying near
the place of the incident and was engaged in the work of toddy tapping. The allegation
against the appellant is that he endeavoured to establish a relationship with Sumathi, who
was about nineteen years of age and was engaged in rolling beedi leaves to make beedis.
In furtherence of his endeavour, he used to visit the residence of Sumathi, which was
objected to both by her father and the deceased. It is alleged that on this very issue an
altercation had earlier taken place in which the appellant is alleged to have threatened the
deceased.
2. The incident relates to 11.00 p.m. on 25th June, 1999 as once again the appellant is
alleged to have come to the house of Sumathi. As per the complaint, verbal arguments got
aggravated and when the family members intervened to stop the quarrel, the appellant is
alleged to have threatened the deceased that he would kill him to stop the quarrel forever
and is alleged to have taken out the Tarkatti strapped to his waist into his hand and stabbed
the deceased on his shoulder, chest, back side and ribs, 5-6 times, resulting in his instant
collapse and thereafter, death. The complainant claims to have witnessed this incident at
11.15 p.m. on the same day and the appellant is alleged to have fled away from the spot,
holding the Tarkatti in his hand. On being taken to the government hospital, the deceased
was declared dead.
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3. The appellant in his Section 313 Cr.P.C. statement denied all imputations and again
stated that he was sleeping in the night and heard the shouting. When he got up, he found
the deceased had suffered injuries and was thereafter taken to the hospital. The police is
alleged to have taken him to the police station later on, the next morning, and have lodged
a false case against him.
4. We now turn to the evidence of the prosecution and note the important aspects of PW-
1/complainant having turned hostile in his cross-examination. While the earlier part of the
story relayed by him, of the interaction among the parties, was supported by him in his
cross-examination, but insofar as the incident in question is concerned, a different
narrative took place. He has stated that on the fateful day, there was a small function at
Babu Poojari's house which his wife had gone to attend, where dinner was being hosted for
the villagers. She returned at about 11.00 p.m., after which they went to sleep, when he
heard a roaring voice. He woke up his wife and daughter and found the roaring voice
coming from near the jackfruit tree, where the body of the deceased was lying. The
deceased was stated to be lying with no clothes on his body, but only wearing his
underwear. PW-1 called out to his neighbour Gangadhar. He further stated on oath that the
police had told him to depose as per the record, as otherwise he would be jailed. In the
cross-examination, he also stated that the appellant had developed friendship with his
daughter, but not with any bad intention. He also deposed to pressure being put on him by
the brothers of PW-2, wife of the deceased, and thus he had deposed falsely due to the fear
of the police, as well as the younger brother of PW-2.
5. The surprising part is that the prosecution did not declare him hostile, nor further cross-
examined him. This remained a major infirmity in the prosecution story. It has been held
that when a witness is not declared hostile by the public prosecutor, and Section 154 of the
Evidence Act is not resorted to, subsequent testimony of such witness remains
uncontroverted K.Anbazghan vs. Supdt. of Police, (2004) 3 SCC 767.
6. We would also like to turn to the depositions of PW2, PW-3 and PW-4 to test the
proposition that even if the testimony of PW-1 was discarded, a consistent story has been
made out as per the despositions of the three other eye witnesses. Unfortunately that is not
the case.
7. In the cross-examination of PW-2, she refers to the fact that she and the deceased did
not have any children and that the deceased was interested in another marriage, to have
children, but she was not interested. She however denied the suggestion that her husband
wanted to marry Sumathi, though she concedes that the villagers were telling her that her
deceased husband was desirous of marrying Sumathi. On the incident, she has stated
Sumathi was still talking to the appellant and she (PW-2) was busy rolling beedis when the
deceased came to the courtyard. Before the brawl started, the appellant was stated to be
going ahead to the courtyard, with the deceased following him and the deceased continued
to do so though he was asked to come back home by PW-2. Once the accused came to the
courtyard, many blows are stated to have been inflicted on the deceased there itself when
PW-1, PW-3 and PW-4 started shouting along with PW-2. She further states "my husband
fell down there itself". It is also her deposition, in her cross-examination that when the
brawl started, she asked Gangadhar for help, but he came only after the stabbing had taken
place. She further deposes that the deceased died fifteen minutes after infliction of the stab
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blows and that she had given water to her husband, though he spoke nothing. The Circle
Inspector is stated to have come at 3 oclock in the morning and enquired from her.
8. PW-3, Sumathi, apparently was receiving the attention of the deceased, and the
allegation is, also, of the accused. She has deposed that a quarrel took place between the
deceased and the accused under the "jackfruit tree". PW2, PW-3 and her parents, PW-1 and
PW-4 are stated to have followed them from the house. Near the jackfruit tree, the
appellant is alleged to have taken out his sickle and stabbed the deceased 5-6 times, where
the deceased fell down. Thus, in the examination-in-chief itself, there is inconsistency
about the place of the incident and what transpired. In her cross-examination, she states
that her father PW-1 had been intimidated by the younder brother of PW-2. She disowns
any friendship with the appellant and further claims that neither PW-1, nor PW-4 had ever
told her not to speak with the appellant. In the very next sentence she states to the contrary.
She asserts that the deceased had an amicable relationship with her, as well as with her
parents, and that whenever an opportunity arose, the deceased used to speak to her in the
afternoon, evening and in the night. On the specific night of the incident, she claims that
she was rolling beedis when the appellant came to her house and started talking to her
from the courtyard, without entering the house. The deceased arrived in the meantime and
there was a quarrel between the appellant and the deceased but "initially nobody fell
down". She deposes: "neither myself nor my father went outside". She further states that
her mothers (PW-4) clothes got blood stains when the deceased suffered injuries. When the
appellant came to the courtyard of their house, she also states that the sickle possessed by
him was not visible. Even when the altercation was going on, it is her statement that she
did not see the sickle with the appellant, and that no altercation occurred in the courtyard.
9. PW-4, the mother of Sumathi (PW-3), refers to the altercation, hearing loud shouting
and subsequently running behind the accused and deceased. She claims to have seen the
deceased lying on the ground and the appellant fleeing away. In her cross-examination, she
has stated that, in the course of the brawl, both the accused and the deceased, ran away
from the courtyard and they (PW-1, PW-2, PW-3 and PW-4) ran after them, with PW-1
first running after them, then PW2, then her daughter and then she herself.
10. We have extracted from the depositions of these three witnesses only to point out the
inconsistent stories of all of them, casting further doubt on the narrative as given by the
prosecution.
11. PW-4 has deposed that in the course of the brawl, while these people were running
away, she could not run and she was the last to reach the site, and that the appellant was
stabbing the deceased on the waist, with the first hit given on the lower portion of the right
abdomen and the second blow inflicted on the left shoulder. Thus, while on the one hand
during her examinaion she states that she saw the deceased lying there, on the other hand,
during her cross-examination she states she saw those blows being inflicted on the waist.
PW-3, on the other hand, stated that the first blow was inflicted on the right shoulder, when
the deceased fell down.
12. These are the aforesaid inconsistencies which resulted in the Trial Court giving benefit
of doubt to the appellant, and consequently acquitting him in terms of the judgment dated
16th September, 2000. PW-17 and PW-18 have deposed to the recovery of the weapon and
blood stained clothes of the accused, which is stated to have happened at the behest of the
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appellant, with the blood group matching. This is an aspect emphasized by learned counsel
for the respondent, and we would like to take note of the manner in which the Trial Court
dealt with this aspect. The recovery has itself been found to be doubtful in terms of
paragraph 26 of the judgment of the Trial Court, which reads as under:
"The theory of arrest as stated by the prosecution has been falsified by PW-1
Seshappa Poojary who has stated in his evidence that when the police had come on
the next day for the panchnama of the place of incident the accused was present and
he has shown the place to the Circle Inspector of Police. It becomes clear from this
that the accused was very much available on the next day afternoon at the place of
incident when the I.O. had come for panchnama. This shows that the accused was
arrested on 27.06.1999 cannot be accepted and the recovery about the properties at
the instance of accused also throws doubt about the same."
13. The prosecution filed an appeal against the Trial Court order before the High Court,
and in terms of the impugned judgment of the High Court, the appellant has been
convicted of a lesser offence, punishable under Section 304 Part-I of the IPC and
sentenced to undergo imprisonment for a period of five years and also to pay a fine of
Rs.5,000/-. The view of the High Court is that so long as direct evidence of the eye
witnesses can be believed, even if the recovery of incriminating articles had not taken
place, including the weapon of offence, it would make no difference. Credence is sought to
be given to the testimonies of PW-3 and PW-4, but in our view, without analyzing the
inconsistencies in their versions.
14. We have given our thought to the submissions of the learned counsel for the parties,
and taken note of the aforesaid evidence on record.
15. We must also take note of the fact that we are dealing with the case where the Trial
Court has acquitted the accused-appellant and the High Court has reversed the acquittal. If
the view taken by the Trial Court was a possible view, then, in our view, there would have
been no occasion for the High Court to reverse the judgment of acquittal. Thus, if the Trial
Court takes a reasonable view, interference by the Appellate Court is not justifiable unless
there are really strong reasons for reversing the view Aher Raja Khima vs. State of
Saurashtra AIR 1956 SC 217, Ghurey Lal vs. State of U.P., (2008) 10 SCC 450.
16. If we analyse this issue in the aforesaid conspectus, we are faced with the following
important facts:
(i) PW-1's testimony, as the complaint, is the first story given to the police. He
deposes in the same manner in his examination in chief, but completely turns turtle in
the cross-examination. His deposition in the cross-examination was that he is not
even an eye witness to the incident, but was actually sleeping along with his wife and
daughter and only rushed to the spot on hearing shouts. He further deposed in his
cross-examination to both the police and the brothers of the wife of the deceased
putting pressure on him. The prosecution did not even deem it appropriate to get him
declared hostile, or cross-examine him, a fundamental infirmity.
(ii) If the testimonies of PW-2, PW-3 and PW-4 are considered, even if the testimony
of PW-1 is ignored, we find, as discussed above, different versions emerging about
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the place of the incident and as to what actually transpired. There is a grave doubt
that these three persons were actually eye witnesses to the incident. We are not
ignoring the submission of the learned counsel for the appellant that the prosecution,
having failed to declare PW1 hostile, it is not as if the portion of his testimony where
he turned hostile can be ignored, and it must be co-relatable to the testimonies of PW-
2 and PW-4. On that account, in any case, the testimonies fall apart, from what we
have recorded aforesaid.
17. The aforesaid evidence does not give us confidence that the prosecution has been able
to prove the case of the appellant beyond reasonable doubt, a view which has found favour
with the Trial Court. That being the position, it can hardly be expected that we accept the
impugned judgment which actually reverses the acquittal by the Trial Court. The view
taken by the Trial Court is a plausible view and hardly calls for interference. In view of the
aforesaid facts and circumstances, we are of the view that the impugned order cannot be
sustained and consequently has to be set aside, and the judgment of the Trial Court is
restored, giving the benefit of doubt to the appellant.
18. The appeal is accordingly allowed, leaving the parties to bear their own costs. The
appellant being already on bail, the bail bonds shall stand cancelled.

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