Paragraph numbers below are the court’s original numbering, recovered from the source text.
3. Learned ca,yn§el fer the appellants submitted that the c concl_l:J.§iQn~ atthe High Court are utterly fallacious and mostly lnu~@d on surmises and conjectures. It has not even analysed the factual conclusions.
4. In response, learn~d oounsel for the acquitted accused persons sub.rn.i.t.ted that analysis have been made from the ~yid~nce of PWs 1 & 2 by the High Court to point out the infirmities. Identification was not possible, and, therefore, the presence as claimed is doubtful. So the High Court is correct in its conclusions. Even if the reasons are not elaborate, the evidence of PWs 1 & 2 has to be read together and a reasonable doubt is raised about the credibility of these witnesses. There are m~mifest suppressions. Vital factors like absence of H9ht in the chappars and impmbability of any light ~rnanating from the bulbs hanging on the Neem Tree have been . F > 1 taken note of. The room and the chappars are at the di3tance of~ 00 metres and, therefore, the possibility by identification was rightly disbelieved. Except one dead body, found in the pit, others were found in lots. Since the accused persons are known co-villagers, there had obvious reasons to hide their identity. There were omissions in the inquest report and there was also delay in sending the FIR and the inquest report. Since all relevant aspects have been considered, in an appeal of acquittal, so far as the appellants are concerned, no interference is called for.
5. In the State's appeal §imilar stand to that of the informant have been taken.
6. A bare perusal of the High Court's O.f~§f§ §hQW~ that the conclusions of the High Court are utterly confµ§ing ~m:f based on surmises.and conjectures. A few instances about the 8 absurd conclusions are as follows: · : ;,A re.ad Ing of the post mortem examination report )'- …. . _ ind.lcates that the four penmns were done to death without · any hindrance or interference ~nd without any person c resisting forcefully and without raising ~my 9l§rfll. )()()( xxx xxx It was alleged in the FIR that the miscreants were seen and identified by Ramakant, Umakant, Ram Tej and "villagers" in the light of electricity and torches. PW1 Ramakant says that he had a torch with him. He is unable to say as to why he did not show it to the 1.0. or Why its memo was not prepared or why the 1.0. was not told about it. xxx xxx It is stated that it was dark iri th~ fj§Jcj. It was not . mentioned in the FIR that any of these penH~fl$ h~g any · F torch with them at that crucial time.
The dispute of pr~s~n~ i of electricity light would have been done away with if tl'l@ torches had been with them. But PW 2 says that there wa§ · no other source of light there except the bulbs but PW 1 says that he had a torch; and was unable to say whether PW2 had it or not. This shows that none of. them was even present on the spot. The story about torch is quite false, . Xxx xxx xxx There was no mention in the FIR that there were two bulbs or these were hanging on the two trees. Conspicuously the entire story, at all places, is silent about the miscreants having any torch etc. Xxx xxx xxx According to PW 2 Umakant and PW1 · Ramakant none of the male family members. were sleeping in the house in the village and al! the male members of the family, were ·sleeping at the tube-well. Although there is nothing·. very much abnormal in it, but under the circumstances this , does not seem to be the truth.
The presence of Ramakant, C and Umakant on the spot is highly doubtful and rather false. PW 2 says that all the appellants had open faces, whereas · the other three persons had muffled their faces by cloth and had come to commit the crime taking advantage of night · .and without raising any alarm or noise. And that their houses are next to their house and some are within a radius of 100 metres. This all appears to be unbelievable in view of the above and is thus false. Xxx xxx xxx FIR number and distance of P.S. from the place of occurr-ence which find mention in the F.l.R., have not been mentioned in the four inquest reports prepared by the two police officers under the supervision and direction of the 1.0. Xxx xxx xxx Even there is no GD on record of the arrival of the 10 to the PS for taking the papers, and of departure for '·the spot on 11.11.1994. Xxx xxx xxx Though normally these things do not matter much and in normal cases prosecution cannot be made to suffer due to faults and latches on. the part of investigating 1;1g~n~y or other police officials.
But in the facts and special circumstances of this case, these become material. Xxx xxx xxx The Doctor (PW 9) conducted post mortem of the dead bodies on 12.11.1994 w.e.f. 11 AM and last was . started at 3PM if the dead bodies had been received }– … earlier then the post mortem could have been_ conducted earlier in the morning, or cguld have been conducted the c same day. The doctor was al§~ nP~ categorical in his statement about the FIR The tim@ pf .~.eath was approximate and it could not definitely P@ §.ai~ !het !h~ occurrence took place at 2.30 AM. These all faQt§ ~f~ fatal to the case of prosecution and indicate that FIR wa~ prepared some time later on and was ante timed. Xxx xxx xxx After arrival of the police, efforts were made to find …. out the culprits and for that purpose help of the dog squad was also taken. And when dog squ;::id also failed then the case was made out naming those with whom there was enmity, and that must have been done on SIJ§picion. The FIR was ante-timed."
7. The witnesses could not have stated the scenario with surgical precision. In State of A.P. v. Kandagopaludu [2005(13) sec 116] it was inter alia observed as follows: r·· "We have been taken through the evidence of PWs 1, 2 and 3 before whom extra-judicial confession has been made by the accused. The testimony of PWs 1, 2 and 3 is consistent. The learned counsel for the respondent pointed out that in the evidence of PWs 1 and 2 there is 1"– contradiction that the accused did not state before them that he came seeking protection from them. In our view, this discrepancy cannot pe termed as a contradiction which f would be fatal to the prosecution case. Every discrepancy in the statement of a witness cannot be treated as fatal to the prosecution case. A discrepancy which is not fatal to the prosecution does not create any infirmity. The incident haq taken place on 24-1-1992 and PW 2 was examined on 22-1"."1Q96 after almost four years. Human memories an~ apt to plur with the passage of time. After lapse of almost four years, it carmot be expected that a witness can depose with mathematical precision."
8. In B.K. Channappa v. State of Kamataka [2006(12) sec 57] it was inter a/ia observed as follows: c "We have independently scrutinised the evidence of the material witnesses in the teeth of the rival contentions of the parties. On reappraisal and scrutiny of the evidence of the injured witnesses Shekharappa (PW 2), B.G. Shivamurthaiah (PW 3) and B.G. Prakashaiah (PW 4), they have fully established the case of the prosecution §lga!n~t A'.'.f! A-3, A-17, A-19 and A-20, although there were ~ert~!n gj§gr~pc;1n9i~~ in their testimony and in cornpari:sQn lP th@ v@r§i9A~ of P'(V 6, PW 7 and PW 19, the eyewitnesses, in regarg to the weapons of offence individually used by A~1, A~3. A-17, A-19 and A-20 for inflicting injuries on the person of each of the injured witnesses as also on the person of the deceased. The discrepancies, as pointed out by the learned counsel for the appellants, are minor and insignificant. The occurrence . i tpok place on 5-7-1995 and the witnesses were examined in the court after about a gap of almost five years. The evidence on record further shows that the injured witnesses had been subjected to lengthy and searching cross- examination and in sµch type of cross-examination, some improvements, contradictions, and omissions are bound to occur in their evidenc~. which cannot be treated as very serious, vital and significant so as to disbelieve and discard the substratum of the prosecution case. The evidence of the injured witnesses and other eyewitnesses c has been rightly reappreciated and accepted by the High Court and we find no cogent and sound reason to differ from the well-reasoned judgment upholding the order of the trial court. There is, therefore, no merit in the argument of the learned counsel for the appellants that the evidence of the injured witnesses and other eyewitnesses shoulq pe labelled as the evidence of th~ interested witnesses. On the other hand, we find that the evidence of all the eyewitnesses including injured persons is quite natural, convincing and trustworthy. There is no material on record from which an inference can be drawn that the material witnesses have implicated the appellants Karibasappa (A- 2), Halanaika (A-3), B.K. Manjunatha (A-17), B.K. Parmeshwarappa (A-19) and B.K. Shivarajappa (A-20) in a false case. o
9. There is substance in the plea by learned counsel for the appellant that the presence of the witnesses nas been erroneously discarded. 1! ~as submittec;t by the respondents- accused that the complainant has no locus standi to prefer any appeal. In any event, State ha~ preferred appeal. In Ramakant E Rai v. Madan Rai & Ors. [2003(12) SCC 395)it was inter alia observed as follows: "A doubt has been raised about the competence of a private party as distinguished from the State, to invoke the jurisdietion of this Court under Article 136 of the Constitution of India, 1950 (in short the 'Constitution') against a judgment of acquittal by the High Court. We do not see any substance in· the doubt. Appellate power vested in this Court under Article 136 of the Constitution is· not to be confused with ordinary appellate power exercised by appellate courts and·appellate tribunals under specific statutes. It is a plenary power, 'exercisable outside the purview of ordinary law' to meet the pressing demands of justice (See Durga Shankar Mehta v. Thakur Raghuraj Singh (AIR 1954 SC 520). Article 136 of the Constitution neither confers on anyone the right to invoke the jurisdiction I· ' —-,..- of this Court nor inhibits anyone from invoking the Court's jurisdiction. The power is vested in this Court but the right to invoke the Court's jurisdiction is vested in no one. The exercise of the power of this Court is not circumscribed by any limitation as to who may invoke it. Where a judgment of acquittal by the High Court has led to a serjous miscarriage of justice this Court cannot refrain from doing _, "I its duty and abstain from interfering on the ground that a private party and not the State has invoked the Court's jurisdiction.
We do not have slightest doubt that we can entertain appeals against judgments of acquittal by the c High Court at the instance of interested private parties also. The circumstance that the Criminal Procedure Code, 1973 (in short the "Code") does not provide for an appeal to the High Court against an order of acquittal by a subordiriate Court, at the instance of a private party, has no relevance to the question of the power of this Court µnder Article 136. We may mention that in Mohan Lal v. -..\, Ajit Singh (1978 (3) SCC 279) this Court interfered with a judgment of acquittal by the High Court at the instance of a private party. An apprehension was expressed that if appeals against judgments of acquittal at the instance of private parties are permitted there may be a flood of appeals. We do not share the apprehension. Appeals under Article 136 of the Constitution are entertained by special leave granted by this Court, whether it is the State or a private party thatinvokes the jurisdiction of this Court, and special leave is not granted as a matter of course but only for good and sufficient reasons, well established by the practice of this Court.
10. In the circumstances, we deem it proper to remit the rnatter to the High Court for hearing the cases afresh and _ …. dispose them of in accordancewith law.
11. The appeals are allowed. R.P. Appeals allowed.