Paragraph numbers below are the court’s original numbering, recovered from the source text.
16. After reaching the above conclusion, here again the trial Court took a contrary conclusion that his evidence as against A-1 to A-4 and A-29 :was acceptable as a Corroborative piece of evidence of other eye-witnesses. Such a conclusion is diametrically opposite to its. own earlier B conclusion that PW-24 was not knowing any of the accused referred to by him on his own. The said contrary conclusion of the trial Court is, therefore, liable to .be rejected, in which event there was no scope to rely upon the evidence.of PW-24. Consequently, the reliance placed upon PW-24 by the High c Court for confirming the conviction of A-2 and A-3 cannot be accepted.
17. Whenwecometotheevidenceof PW-30, as stated earlier, PW-30 was also found to be a chance witness as he had gone to the place of inCident 6n the date of occurrence D and time by chance in connection with his' personal work or business: As regards his evidence, after a detailed reference to his version, the trial Court has concluded as under: j' " ……. But, the said witness riowhere stated for having seen any of the accused referred to by him in his statement assaulting the deceased with any weapon alleged to be possessed by him, either inside the shop of the deceased or on the road by chasing. Therefore, ·• · • the evidence' of PW-30 which is self contradictory cannot ·be relied upon as a whole, except the evidence stated about presence of acc·used No.3, 4 and 29 at the said place, which is corroborated with evidence of other independent eye witnesses .. ' ….. "
18. When the said conclusion arrived at by the trial Court, relating to PW-30 that he was a chance witness and that his G version was self~contradictory and, therefore, not reliable, his version about the presence, in particular of A-3 with whom we are presently concerned, cannot alsdbe adverted to inasmuch asA-3 has otherwise been held to have been directly involved in the commission of the crime, namely, inflicting of injuries on NOUSHAD@ NOUSHAD PASHAv. STATE OF KARNATAKA [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.J the person of the deceased Lingaraju. Such act of inflicting of A injuries was stated to be inside the shop of the accused, which was already surrounded by nearly 35 to 40 persons as stated by PW-11. Therefore, there was no scope for placing any reliance upon PW-30 as well, either by the trial Court or by the High Court to confirm the conviction of A·3.
19. The next witness which has been referred to and relied upon by the High Court in the impugned judgment as againstA-1 and A-3 was PW-43. In fact, with reference to PW- 43, the conclusion of the trial Court as against him was highly derogatory. In paragraph 18 of the trial Court judgment, the C nature of evidence rendered by PW-43 has been mentioned and it has been observed as under: "PW-4;) also st01ted that he was working then in Pandavapur and used to visit Kollegal once in a week. Therefore. the chance of witnessing of such incident by D being present at the said place. time and date by PW- 43 appears to be doubtful and the evidence of PW-43 given by identifying all the accused persons as the persons and members of said group which fled away from the said place appears to be an exaggeration, when as admitted by said witness in cross-examination that he had never seen any of the accused before that day." (Underlining is ours)
20. When such is the caliber of the witness, namely, PW- 43 and his version relating to the occurrence, we fail to understand as to how the High Court was able to rely upon the said witness in order to find the guilt as againstA-2 and A-3.
21. The next witness who was relied upon by the High Court was PW-44 as against all the three Appellants, namely, . G A-1 to A-3. It was startling to note that with reference to the said witness, the trial Court has remarked that his version was contradictory in material aspects as against the case of the prosecution which was otherwise claimed to be supported by the other ey~witnesses. Therefore, the version of PW-44 was H (2014] 14 S.C.R. considered not trustworthy as it was exaggerative and wholly unbelievable. Hence, the evide.nce of PW-44 in no way supported the case of the prosecution.
22. Having thus noted the version of PW-19, when we refer to the evidence of PW-14, in the analysis of the trial Court his evidence was also unreliable and unbelievable. The trial Court has remarked as under while referring to the evidence of PW-14. c ''Therefore, the evidence of this witness appears to be unreliable and unbelievable as it do· not inspire any confidence in the mind of the Court as against the unknown and unidentified persons alleged to be also present in the said assembly, moreover the alleged words said to be utteFed by .the other unknown and unidentified persons said to be present in group, cannot be sufficient to attribute knowledge of the common object of committing murder of deceased and joining said assembly intentionally an_d continuing in said assembly _till object is achi~ved." xxxxxxxxx . Therefore, the evidence of PW-14 also cannot be accepted as sufficient and reliable to hold A-2, A-4, A- 23 and A-24 as guilty of the offences under Sections 143, 147 and 148 of JPC. The very presence of the said witness at the time of the occurrence appears to be suspicious, in view of self-contradictory versions of said witness and the contrary evidence to the prosecution story and to the evidence of PW-5 and PW-13. All the said witnesses examined as PW-5, PW-13 and PW-14 are chance witnesses, who happened to have witnessed the incident, by being present at said place and time by chance. The reasons assigned by said witnesses for their presence at the said place and time and their stay at the said place do not appear to be natural or probable in view of the material contradictions in their evidence." NOUSHAD@NOUSHAD PASHA v. STATE OF. KARNATAKA [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
23. After such a categoric conclusion relating to the A unreliability and suspicious version of pW-14, the trial Court in one breath concluded that his evidence, as regards the presence and acts of A-2 and A-4 done in commission of the offences, is considered for corroboration with evidence of eye witnesses, along with the prosecution witnesses examined as eye witnesses to the incident. In the light of the earlier detailed reference to the nature of evidence tendered by PW-14 along with PWs-5 and 13 and the ultimate conclusion of the trial Court in having held that their evidence was unreliable, unbelievable and suspicious, it was wholly improper on the part of the trial C Court to ultimately state without any justifiable reason that their version can be accepted for corroboration. Therefore, the reliance placed upon tne said witness, namely, PW-14 both by the trial Court as well as ttie High Court cannot be accepted.
24. When we come to the evidence of PW-15, as noted D. by the trial Court, he used to sell bananas by stationing his puller Gadi in front of Anjuman Complex on Ambedkar Road and that he saw 40 to 45 persons going towards the shop. of the deceased armed with knives, choppers and .swords. He further stated that out of the said group, 15 persons trespassed into the shop of the deceased while around 20 persons were standing outside the shop .. He stated that those who trespassed into the shop assaulted the deceased Lingaraju with choppers, knives, longs and swords all over the body (viz.) chest, neck, left hand, back etc. Significantly, he also stated that when he saw the deceased Lingaraju escaping from the shop and running towards the police station, he collapsed in front of Surya Prabha Hardware shop and at that point of time, PWs-11 and 24 were running towards that spot. The trial Court has also specifically noted that the version of PW-15 in the G course of the cross examination that PW-11 arrived at the place of occurrence only after the fall of the deceased near the hardware shop was contrary to the version of PW-11. The trial Court, therefore, stated that if the said statement of PW-15 is to be believed, then the evidence of PW-11 would be unreliable as regards his witnessing the incident of assault of the deceased inside the shop, as well as, outside the shop. The above factors, therefore, disclose that the evidence of PW-15 and PW-11 are self contradictory in nature.
25. When we analyse the evidence of PW-15 viscacvis B the evidence of PW-11, we are convinced that the version of both the said witnesses cannot be relied upon for reaching a definite conclusion as.to the guilt of the accused, in particular, the App~llants ~erein. Moreover, admittedly PW-15, the deceased and PW-11 are closely related. The trial Court has C also held that the version of PW-15 that he saw A-6 present in the group of 15 persons who trespassed into the shop of the deceased and assaulted him was contrary to the prosecution story and the evidence of other eye witnesses. Admittedly, no weapon was recovered at the instance of A-6, while according D to PW-15, A-6 was not only in possession of a weapon but also used it in the commission of the offence. In the light of the above analyses made by the trial Court as regards the version of P-15, which consists of very many incongruities relating to the factum of occurrence, the presence of witnesses and the E overt act alleged against some of the accused, it will be highly unsafe to place reliance upon the said witness as regards the guilt of the Appellants/Accused.
26. Having noted the above features relating to PWs• 14, 15, 19, 24, 30, 43 and 44, we are left with the so-called star witness, namely, PW-11 who was none other than the elder brother of the deceased Lingaraju. Since, the prosecution heavily relied upon the said witness, it is necessary to examine the version spoken to by the said witness in some details as regards the motive, the place of occurrence, the manner in G which the act was said to have been committed by the various accused, his claim about his presence at the place of occurrence and also the extent of the overt act attributed to different accused including the Appellants and the subsequent conduct of the said witness. After making reference to these H factors as narrated by him in his evidence as well as noted by NOUSHAD@NOUSHAD PASHAv. STATE OF KARNATAKA [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.] the trial Court in its judgment, it can be examined as to whether A the heavy reliance placed upon the said witness can be held to be justified.
27. In order to analyse the evidence of the said witness in the first instance, the location where the occurrence took place as spoken to· by PW-11 in his complaint and as to how B many of the accused according to him were involved in the commission of offence has to be noted. The complaint is Exhibit P-18. The sum and substance of the contents in the said document was that on 13.02.1999 at about 3 p.m. when PW- 11 was coming from Shringar Hotel after taking coffee towards C his shop, noticed all of a sudden that about 15 persons trespassed into his shop and assaulted his younger brother Lingaraju, the deceased with knife, choppers and the like mercilessly on his body, back, neck and leg etc. and that while he was proceeding towards the place of occurrence, D simultaneously screaming, all the accused persons ran away from the shop proclaiming that their vengeance was fulfilled and that the deceased was murdered. He also stated that, while so, his younger brother, namely, the deceased was running towards the police station from the shop and fell down E near the old post office. He, however, stated that from among the accused persons who were running away he could note the three Appellants and that he did not know the names of the other persons, though he would be in a position to identify them if he gets an opportunity to see them.
28. Keeping the said version of PW-11 immediately after the occurrence in mind, when we examine the mahazar prepared atthe place of occurrence, it has been noted therein that the place of occurrence pointed out by PW-11 was situated inside the banana shop of PW-11 himself. The size of the shop G was described as North-South 11 feet and East-West 8 feet with Mangalore tiled roof top. A cement platform of 3 feet width and 2% feet height with 9 feet length was stated to be there in front of the said shop. The mahazar also mentions that the occurrence took place at the time when the deceased was (2014] 14 S.C.R. carrying on his business activity of selling bananas inside the South-East corner of the said shop. Again keeping the above specific particulars noted in the mahazar based on the instructions given by PW-11, it will be necessary to note the place where PW-11 was taking coffee, namely,.Shringar Hotel, B vis-a-vis the exact place where the deceased fell down after he was allegedly assaulted by the accused inside the shop and the approximate distance as between the shop of PW- 11 , namely, where the deceased was carrying on the business of selling bananas and the place where the deceased fell down C by referring to the sketch mark, namely, Exhibit P-55 before the.trial Court. -· 29.
The above mentioned sketch discloses that the banana-shop of PW-11 was situated on the eastern side of the main road called Anibedkar Road while the Shringar Hotel D was on the western side i.e. on the opposite side where the banana shop was located. The distance approximately stated to be around 150 feet: PW-11 claimed that when he was returning from Shringar Hotel after taking coffee and was approaching near the Mahadevswami Clinic, he noticed the E crowd which was assembled in front of his banana shop. As per the Exhibit P-18 complaint, he noticed not less than 15 persons who trespassed into his shop. Before the Court, he stated that when he was returning back from Shringar Hotel along with his friend Parmesh near Geeta Bhawan Hotel, he F saw a group of about 40 to45 persons who were coming from Nalanda Gas Agency in front of his banana shop and from among them, 15 persons were shouting "Mar do Mar do" who – were holding two swords like long, axes and small knives in their hands.
He also narrated that the deceased Lingaraju was G alone in the shop and the mob went inside the shop and assaulted him with the said weapons. Considering the said version of PW-11, in contrast to the version of PW-15 who was stated to be present even before the occurrence took place, PW-15 stated in clear terms that when PW-11 arrived, NOUSHAD@ the deceased had already left the Banana shop running towards A· the Police Station and fell down in front of Surya Prabha Hardware shop.
30. When we examine the deposition of PW-11, the relevant factors to be noted are that his banana shop was situated near Geeta Bhawan onAmbedkar Road, that Surya Prabha hardware shop where the deceased ultimately fell down was at a distance of 140-150 feet from his banana shop. The Shringar hotel where PW-11 was taking coffee was situated in a lane and that while he was returning from the said hotel after taking coffee he saw 35-40 persons surrounding his shop C and 15 persons forcibly entered his shop armed with axe, knife and long (meaning a long knife) who were assaulting the deceased Lingaraju. According to him, after the deceased was attacked inside the banana shop, he somehow escaped and was running towards the police station after crossing Geeta Bhawan and near Surya Prabha hardware shop where he collapsed and fell down.
31. He would state thatA-1 who was present and who assaulted his deceased brother was holding an axe, thatA-2 who was assaulting his deceased brother was holding a long (meaning a long knife), thatA-3 was assaulting his deceased brother with a long andA-29 was also assaulting his deceased brother with a sword. After saying so, in the later part of his evidence, he stated without any ambiguity that M.0.5 sword, which was shown to him in the Court was found in the hands of F A-3. He also stated tharthe axe shown to him marked as M.0.19 was in the hands of A-2. However, he stated that it was not possible for him to state the weapons held by any of the accused by identifying the same. He went on to state that his younger brother i.e., the deceased was assaulted inside G the shop with the aid of long axe, knife that all the remaining accused who were 35-40 in number, were standing outside the shop shouting 'maro maro'and that when his brother was attempting to escape from the shop the assault continued. He would further state that when he saw 15 persons entering his [2014) 14 S.C.R. A · shop and another group of 30 persons standing outside his shop, he was frightened by such a large group formed outside his shop and that he could see his brother who was standing in front of his shop in order to escape from their clutches, running towards Su_rya Prabha hardware shop. He also stated that after seeing the assault made by the persons in the group on his younger brother, he did not run towards his shop but ran towards Surya Prabha hardware shop where his brother fell down.
32. Keeping the various above factors stated by PW-11 and also as noted in the Exhibit P-18, the complaint, the mahazar as well as P-55 sketch read along with the version of PW-15, it will have to be stated that PW-11, who was taking coffee in Shringar hotel, which was located in a lane situated beyond Surya Prabha hardware shop, even by accepting the fact that he was approaching near Mahadevswami Clinic, which was in between the said Shringar hotel and his banana shop, the evidence of PW-1.1 could not have been believed insofar as it related to the actual occurrence, which admittedly was taking place inside his banana shop, the length and breadth of it being 11 ft. x 8 ft. which place was admittedly surrounded by nearly 30 persons while 15 persons were stated to be inside the said shop of small size. We say so because it would have been next to impossible for PW-11 to have witnessed. the actual oceurrence that was taking place inside such a small place which was already occupied by 15 persons and surrounded by 30 others outside the shop, taking note of the fact that he was located in a place away from the shop near Mahadevswami Clinic.
33. It is necessary to examine and find a definite answer G to the said question in the light of various allied facts with reference to the number of persons, the place from where he was witnessing such an assembly, the nature of movement of the persons gathered in front of his banana shop, his own statement that he was frightened while looking at such a large H group of persons and that even according to him he saw his NOUSHAD@ brother running away from the shop with a view to escape and A that he did not run towards the shop but was eager to follow his brother who was running towards Surya Prabha hardware shop where he ultimately fell down and collapsed. In this context, the evidence of PW-15, another so called eye witness, was very categoric to the effect that when PW-11 came to the spot, the deceased had already reached Surya Prabha Hardware Shop where he collapsed.
34. It was beyond controversy thatthe actual occurrence of assault on the deceased Lingaraju took place inside the banana shop, the area of which going by the description, could C not have been beyond 90-.100 sq. feet. If inside such a small ·place assuming 15 persons had entered and by the time PW- 11 was approaching near the Mahadevswami Clinic, the occurrence had already taken place, it would have been next . to impossible for anyone, much less PW-11 to have gone D inside.the shop and to have noticed as to who was assaulting the deceased with what weapon .. While looking at the place of occurrence, even if it is from a nearby place, when the particular place of occurrence was surrounded by not less than 35-40 persons of whom 1'5 persons stated tohave already · E entered the place of occurrence, the scope for PW-11 to have witnessed the incident with that much of exactitude, as to which accused assaulted his brother with what weapon in his hand cannot be said to have been really witnessed by him. That apart, even by his own version he saw his deceased brother F coming out of the shop and trying to escape from the assault of persons gathered there who continued to inflict injuries on him and on seeing his brother running towards the police station, which was beyond SuryaPrabha hardware shop, PW- 11 himself instead of going towards the shop was following G his injured brother who fell down near Surya Prabha Hardware and collapsed. The said part of his evidence is consistent with the evidence of PW-15.
35. Apart from the above.inconsistencies which could be gathered from the evidence of PW-11, his specific overt H act as againstA-3 that he was holding a long in his hand, was falsified by his own statement while identifying M.0.5, which was a sword which he stated was found in the possession of A-3. Similarly, with reference toA-2 while in the earlier'part of his statement, he stated that he was assaulting the deceased with the aid of a long (a long knife) when he identified M.0.-18, he stated that it was the said axe which was found in the hands of A-2. Here again, PW-11 was not consistent with reference to the weapon stated to have been found in the possession of A~2. and A-3. A cumulative consideration of his _version discloses that PW-11 could not have witnessed the occurrence as spoken to by him. We, therefore, find that the evidenc~ of PW-11 was full of inconsistencies and unfortunately the trial Court as well as the High Court completely ignored such inconsistencies while holding theAppellants guilty of the offence D alleged against them.
36. As has been narrated in. the earlier part of this judgment, the High Court placed reliance upon PWs-11, 14, 15, 19, 24, 30, 43 and 44 to holdthatthe offence as againstA- 1 to A3 was sufficiently established. When we peruse the E judgment, we find that the High Court seemed to have totally omitted to note relevant findings of the trial Court as regards the evidence of PWs-14, 15, 19, 24, 30, 43 and 44 by stating that there was no reason to disbelieve their evidence except that it suffered from little variations. On the other hand, as has been noted by us, by extracting the relevant part of the findings of the trial Court wherein the trial Court has given categoric finding with reference to each of the above said witnesses, that many of them were chance witnesses and were not able to give a real picture of what transpired in the place of G occurrence because of glaring inconsistencies in their evidence and, therefore, their evidence was totally unreliable and unbelievable. Unfortunately, the High Court without assigning any reason perfunctorily held that except minor variations those witnesses were eye witnesses and that their version was NOUSHAD@ believable, trustworthy, natural Which finding was not supported A by any convincing reason.
37. Having regard to the above analysis made by us with reference to the so-called star witness PW-11 and the other so-called eye witnesses with reference to whom the trial Court has made it clear that they were all unreliable and unbelievable, it will be wholly unsafe to rely ori such evidence in order to confirm the conviction imposed on A-1 to A-3.
38. For the above stated reasons, we find force in the . submission of Mr. Altaf Ahmed, learned Senior Counsel that though the very version spoken to by the said witnesses C persuaded the trial Court to acquit all other accused, except A-1 to A-5 and A-29 and the High Court to acquitA-4, A-5 and A-29, for the very same reasoning, the conviction of A-1 toA- 3 cannot also stand. Consequently, the appeal is allowed. The conviction and the sentence imposed on the Appellants are D set aside. The Appellants shall, therefore, be set at liberty forthwith unless their detention is required in any other case. Kalpana K. Tripathy Appeal allowed.