Karnataka High Court
Smt Pratibha W/O Bhimu Damannavar, vs The State Of Karnataka on 22 March, 2013
Author: H S Kempanna
Bench: H S Kempanna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 22 N D DAY OF MARCH 2013
PRESENT
THE HON'BLE MR.JUSTICE B.V.PINTO
AND
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
CRIMINAL APPEAL NO.2641/2011
C/W.
CRIMINAL APPEAL NO.2647/2011
In Crl.A.No.2641/2011
BETWEEN:
Smt. Pratibha,
W/o Bhimu Damannavar,
Age: 22 years, Occ: Housewife,
R/o. Halatti, Tq: Chikodi,
Dist: Belgaum. ...Appellant
(By Shri. Anand L.Sandrimani, Advocate)
AND:
The State of Karnataka,
Represented by
State Public Prosecutor. ...Respondent
(By Shri. V.M.Banakar, Addl. SPP)
This criminal appeal is filed under section
374(2) of Cr.P.C. seeking to set aside the
judgment dated 21.03.2011 passed by the Fast
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Track Court-I, Chikodi, in Sessions Case
No.142/2010, insofar as it relates to conviction
and sentence for the offences punishable under
Sections 148, 352, 342, 324, 302 read with
Section 149 of IPC in respect of accused No.8
- - - - - - - -
In Crl.A.No.2647/2011
BETWEEN:
1. Bhimu Shankar Damannavar,
Age: 35 years, Occ: Agriculture,
R/o: Halatti, Tq: Chikkodi,
Dist: Belgaum.
2. Shankar Ammakka Damannavar,
Age: 50 years, Occ: Agriculture,
R/o: Halatti, Tq: Chikkodi,
Dist: Belgaum.
3. Smt. Sumitra Shashikant Kamble,
Age: 45 years, Occ: Household work,
R/o: Halatti, Tq: Chikkodi,
Dist: Belgaum.
4. Kumari Roopa,
D/o Shashikant Kamble,
Occ: Student,
R/o: Halatti, Tq: Chikkodi,
Dist: Belgaum.
5. Mala, D/o Shankar Damannavar,
Age: 27 years, Occ: Household work,
R/o: Halatti, Tq: Chikkodi,
Dist: Belgaum.
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6. Smt. Ratnawwa Shankar Damannavar,
Occ: Household work, R/o: Halatti,
Tq: Chikkodi, Dist: Belgaum. ...Appellants
(By Shri. Chandrashekar Chakallabbi, Advocate)
A N D:
State of Karnataka,
(Through Chikkodi Police)
represented by
State Public Prosecutor,
Dharwad. ...Respondent
(By Shri V.M.Banakar, Addl. SPP)
This criminal appeal is filed under section
374(2) ofCr.P.C. seeking that the judgment of
conviction and order of sentence passed by the
Fast TrackCourt-I, Chikkodi and thereby
sentencing accused No.1, 2, 4 to 8 undergo
imprisonment forlife and topay fine ofRs.2,000/-
each for theoffences under Section 302 of IPC and
for offences under Section 148 sentence to
undergo imprisonment for 1 year each and
setenced the accused to undergo imprisonment for
1 year eachfor the offences under Section 342 and
shall undergo imprisonment for 2 years and to pay
fine of Rs.500/- each for the offence under
Section 452 it is further order that in case of
default of payument of fine amount, accused shall
go imprisonment for 1 month for Rs.2,000/- and
15 days for 1,000/- and 7 days for Rs.500/- be
set aside by allowing the appeal.
These criminal appeals coming on for further
hearing this day, H.S.Kempanna, J., delivered the
following judgment.
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JUDGMENT
These two appeals preferred by the appellants/accused are directed against the
judgment and order dated 21.3.2011, passed in S.C.No.142/2010, by the Adhoc District Judge and Presiding Officer, Fast Track Court-I, Chikkodi, convicting them for the offences punishable under Sections 148, 452, 342, 324, 302 read with Section 149 of IPC and sentencing each of them to undergo imprisonment for one year for the offence punishable under Section 148 of IPC, to undergo imprisonment for two years and to pay fine of Rs.500/- each for the offence punishable under Section 452 read with 149 of IPC, and to pay fine of Rs.1,000/- each for the offence punishable under Section 342 read with 149 of IPC, to undergo imprisonment for one year for the offence punishable under Section 324 read with 149 of IPC and to undergo imprisonment for life and to pay fine of Rs.2,000/- each for the -5- offence punishable under Section 302 read with 149 of IPC, in default of payment of fine amounts, to undergo imprisonment for one month, 15 days and 7 days, respectively.
2. Crl.A.No.2641/2011 has been preferred by accused No.8 and Crl.A.No.2647/2011 has been preferred by accused Nos.1, 2 and 4 to 7 before the trial Court. Since both these appeals arise out of the same judgment and order, they are heard together and are disposed of by this common judgment.
3. The brief facts of the case are:-
The appellants/accused in both these appeals were tried on the charges for the offences punishable under Sections 148, 452 read with 149 of IPC, 342 read with 149 of IPC, 324 read with 149 of IPC and 302 read with 149 of IPC. -6-
3.1 It is alleged that these appellants/accused along with absconding accused No.3, on 17.9.2009, in between 1.30 p.m. to 2.00 p.m., at Ambedkar Colony of Halatti village coming within the jurisdiction of Chikkodi Police Station, had formed themselves into an unlawful assembly, armed with deadly weapons like stones, blow pipe, etc., the common object of which was to commit murder of deceased Umesh and in furtherance of their common intention they dragged the deceased Umesh from his house situated at Ambedkar Colony of Halatti village to their house situated in the same colony and there, after tying his hands, legs and gagging his mouth with a cloth, did commit his murder by assaulting him with stones, blow pipe and further they also assaulted and caused hurt to PW.1, the mother of the deceased and thereby committed the aforementioned offences.-7-
3.2 It is the case of the prosecution, the deceased Umesh is the son of PW.1. PW.1 along with her husband and two sons comprising of the deceased, PW.8 who is their relative, were residing in their house situated at Ambedkar colony in Halatti of Chikodi. Among them, PW.1 and her husband were coolies by occupation, the deceased and another son were working as cleaners in a private bus, which plies from Chikodi to Belgaum and PW.8 was studying in 7 t h standard. PWs.9, 10, 11 and 12 are also residing in their respective houses at Ambedkar colony, which is situated in the same line near the house of PW.1 and they are also coolies by avocation.
3.3 It is further the case of the prosecution, accused No.2 is the father of accused Nos.1, 4, 6 and husband of accused No.7. Accused Nos.3 and 5 are grand children of accused No.2. Accused No.8 is the wife of accused No.1. Among them, -8- accused No.1 is a coolie by occupation. Accused No.5 had completed her B.A. degree. Accused No.6 had appeared for B.Ed examination. Other accused are housewives. All the accused, according to the prosecution, were residing in their house situated at Ambedkar colony of Halatti, which is at a distance of about 200 fts.
from the house of PW.1.
3.4 It is further the case of the prosecution, the deceased every now and then was seeing at accused No.8, who is the wife of accused No1. He had an eye on her. This had come to the knowledge of the accused. Therefore, they were nursing grudge against him.
3.5 Such being the position, it is the case of the prosecution, on 17.9.2009 PW.1 had gone to Chikodi to attend the sandy. The deceased was in the house itself. Her another son had gone to his work. At about 1.00 or 1.30 p.m on that day, the -9- accused finding the deceased alone in his house came near the house having formed themselves into an unlawful assembly armed with stones, blow pipe etc., the common object of which was to commit his murder and thereafter, dragged the deceased from his house to their house, which is situated at a distance of about 200 fts., at Ambedkar colony in Halatti. This was witnessed by PWs.8 to 12.
3.6 It is further the case of the prosecution, after the accused took the deceased dragging from his house to their house, they closed the door of their house, tied his hands, legs, gagged his mouth and assaulted him with stones and blow pipe.
3.7 It is the case of the prosecution, A.1 assaulted the deceased with stones on the head and others also followed him. The deceased raised cries. In the meantime, it is the case of the
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prosecution, PW.1 - mother of the deceased, who had been to Chikkodi sandy, was returning to her house via the house of the accused. According to the prosecution, PW.1 and her family members, PWs.8 to 12 in order to reach their houses from Chikkodi, they have to pass via the house of the accused. When PW.1 was near the house of the accused, she heard the cries of her son from the house of the accused. Hearing the same, she came near the house of the accused and at that time, according to her, PWs.8 to 12 were also present near the house of the accused. Thereafter, it is the case of the prosecution, PWs.1 and 8 to 12 forcibly opened the door of the house of the accused. At that time they saw the deceased hands and legs having been tied, mouth having been gagged and he being assaulted by the accused with stones and blowpipe. Seeing the same, when PW.1 went to rescue of her son, she was assaulted by A.1, A.3, A.6 and A.8. According
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to the prosecution, A.8 not only assaulted the deceased with blowpipe, but also PW.1. Among others, A.1 to A.3 and A.6 assaulted the deceased with stones whereas, A4 and A.5 assaulted with clubs. A.1, A.3 and A.6 also assaulted PW.1 with stones. On account of the assault made, the deceased sustained severe injuries on his head and other parts of the body. Likewise, PW.1 also sustained injuries on her chin. In the meantime, someone from the colony had called on the Ambulance i.e., 108. After arrival of the same, the deceased and PW.1, who were injured, were removed to Chikkodi Hospital by PW.9 and another. At Chikkodi hospital the deceased and PW.1 were initially treated by PW.19 - Medical officer, who issued wound certificates in respect of them as per Exs.P.25 and P.26. After their examination, PW.19 advised the deceased to be shifted to Belgaum Civil Hospital as he had sustained severe injuries. Accordingly, he was
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shifted to Belgaum City Hospital by PWs.4 and 5. On the way, he expired due to the injuries sustained and on taking to the Civil hospital at Belgaum, on examination he was declared as having been brought dead. It was about 6.15 p.m on 17.9.2009 at that time. In the meantime, it is the case of the prosecution, PW.1 after taking treatment at the hands of PW.19 proceeded to Chikkodi police station and there she filed her complaint as per Ex.P.1 before PW.17- ASI, who on receipt of the same, registered a case in Crime No.359/2009 for the offences under Sections 143, 147, 148, 452, 342, 504, 506, 326, 307 r/w. 149 of IPC initially against the accused and issued FIR to the Court as per Ex.P.16. Thereafter, he proceeded to the scene of the occurrence and drew up scene of offence panchanama as per Ex.P.4 in the presence of panch PW.2 and another. At the time of Ex.P.4, he also got photographs Exs.P.2 and P.3 taken of scene of the occurrence. By that
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time, he received the intimation about the death of the deceased, who had been taken to Belgaum Hospital. On receipt of the same, he prepared an additional report adding Section 302 of IPC in the case registered earlier and forwarded the same to the Jurisdictional Magistrate. Thereafter, he handed over further investigation of the case to PW.22-CPI. PW.22 on taking over the investigation from PW.17 directed him to proceed to Belgaum Hospital and to hold inquest over the body of the deceased and also to get the same subject to post- mortem examination. Accordingly, PW.17 proceeded to Belgaum Hospital on 18.9.2009 and there he held inquest over the body of the deceased at the hospital and drew up inquest panchanama as per Ex.P.5 in the presence of panchas PWs.4 and 5. At the time of Ex.P.5, he also recorded statement of the blood relatives of the deceased. Apart from the same, he also got the photos of the body of the deceased taken, which
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are at Exs.P.6 to 9. After completing Ex.P.5, he got the body subjected to postmortem examination by issuing a requisition as per the directions of PW.22-CPI. In pursuance of the same, PW.20 - medical officer conducted autopsy over the body of the deceased and issued postmortem report as per Ex.P.27. The said medical officer also handed over the clothes of the deceased to PW.21 to whom the body had been entrusted for subjecting to postmortem examination. Thereafter, PW.17 returned to the police station and handed over Ex.P.5 and other documents. PW.22 during the course of investigation recorded the statements of PWs.8 to 12 and also other witnesses examined on behalf of the prosecution and cited in the charge sheet. Further he also drew up rough sketch of the scene of the occurrence as per Ex.P.31 and also got a fair sketch of the scene of the occurrence as per Ex.P.18 prepared through PW.15- Assistant Engineer by issuing proper
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requisition. PW.22 continuing the investigation forwarded all the seized articles in the case for subjecting them to chemical examination to FSL office. He arrested accused Nos.2, 4 to 8 on 19.9.2009 and on completion of their arrest formalities got them remanded to judicial custody on the same day. Thereafter, on 2.10.2009 he arrested A.1 and on his interrogation, he recorded his voluntary statement as per Ex.P.32 and in pursuance of the same, he seized MOs.3 to 9 at his instance under Ex.P.10 in the presence of panchas PWs.5 and 6. Thereafter, on completion of their arrest formalities he got him remanded to judicial custody. PW.22 thereafter secured all the relevant documents from the concerned authorities and on completion of the investigation of the case, as accused No.3 was not traced despite of their best efforts, he submitted final report against the appellants/accused before the Jurisdictional Magistrate, who in turn, committed
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their case to the Court of Sessions, which on receipt of the records, secured their presence, framed charges as against them as aforesaid, to which they pleaded not guilty but claimed to be tried.
4. The prosecution in support of its case in all examined PWs.1 and 22 and got marked Exs.P.1 to P.37 and MOs.1 to 14. During the course of examination of the prosecution witnesses, the accused have not got marked any defence exhibits. They denied all the incriminating circumstances in their examination under Section 313 of Cr.P.C. Thereafter, among the accused, accused Nos.1 and 8 examined themselves as DWs.1 and 2 as defence witnesses in support of their case. During the course of examination of DW.2 they got marked Exs.D.1 to D.4. Total denial of the prosecution case is defence of the accused.
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5. The learned trial Judge on considering the oral and documentary evidence placed on record came to the conclusion that the prosecution has established the charges levelled against the appellants/accused and accordingly, by the impugned judgment and order convicted and sentenced them as aforesaid.
6. The appellants/accused in both these appeals being aggrieved by the judgment and order of conviction and sentence are in appeal before this Court.
7. Learned counsel appearing for the appellants/accused contended that the evidence of P.W.1 cannot be believed for the reason that in her First Information-Ex.P.1 filed before P.W.17-ASI, she has claimed that, while she was returning to her house via house of the accused, on hearing the cries of her son, she went near the house of the accused and, thereafter,
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entered the house along with P.Ws.9 and 10, whereas in her evidence before the Court, she claims that, while she was in her house on that day she came to know through her neighbours i.e., P.Ws.8 to 12 that her deceased son had been dragged by the accused to their house. This material contradiction in her evidence would go to show that her claim that she heard the cries of her son and went near the house of accused and had seen the accused assaulting her son and she also being assaulted cannot be believed. He further contended that her admission in the cross-examination goes to show that after she was informed about the occurrence she came to the house of accused which would go to show that there was no person at the time of the occurrence in the house of the accused. He further contends that P.W.1, in her complaint-Ex.P.1, has not mentioned about P.W.8 residing in her house. Admittedly, P.W.8 hails from Sankeshwar, therefore, in the absence of the name of P.W.8 in Ex.P.1, the claim of P.W.1 that P.W.8
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along with P.Ws.9 to 12 had come near the house of the accused and had seen the occurrence cannot be believed. This is another point which goes to doubt the testimony of P.W.1.
7.1 He further contends that the testimony of P.W.1 that she went to the house of the accused on hearing the cries of her deceased son cannot be believed because the evidence of P.W.1 and other witnesses i.e., P.Ws.8 to 12 reveals that, when they entered the house of the accused, they found that the deceased having been tied of his hands, legs and his mouth had been gagged with a cloth. If that is so, the question of deceased raising any cries and on hearing the same, P.W.1 coming to the house of the accused does not arise at all. In that view of the matter, her evidence that she came to the house of the accused is also doubtful. He also further contended that the claim of P.W.1 that P.W.8 was residing in her house and was studying is
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falsified because though she claims that she had furnished the school records of P.W.8 to the Investigating Officer, the same has not been placed before the Court. In that view of the matter claim of P.W.1 that P.W.8 was residing in her house and was studying cannot be believed. Further, the claim of P.W.1 that P.W.8 was residing in her house and studying is falsified by the evidence of P.W.22-Investigating Officer who has stated that he has not received any documents to show that P.W.8, as on the date of occurrence, was prosecuting his studies in 7th standard at Chikkodi, on the other hand, his evidence reveals that P.W.8 was residing with his parents at Sankeshwar. Consequently, the claim that P.W.8 was present in her house on the date of occurrence and had seen the occurrence cannot also be believed.
7.2 Learned counsel further pointed out that insofar as accused Nos.4, 5 and 6 are concerned, on the
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said date and at the time of the occurrence, they were not at Halahatti and among them accused Nos.4 and 5 were not residing in the house of accused No.1. P.W.22, the Investigating Officer, in his cross-examination, has admitted that accused no.4, who is the daughter of accused No.5, was studying BA course and was residing with her mother-accused No.5 at the place of her father viz., Galatga. The suggestion of the accused to P.W.1 is that accused No.5, who is the daughter of accused No.2, had been given in marriage to one Shashikant, a resident of Galatga and after the marriage she was living with her husband and daughter at Galatga. Her husband expired in due course of time. Even after the expiry of her husband, she continued to live at Galatga along with her daughter, as her deceased husband had owned lands which were being cultivated by her. In view of the admission given by P.W.22-Investigation Officer, accused Nos.4 and 5, as on the date of the occurrence, were not living at Halahatti in the house of accused
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No.1. Insofar as accused No.6 is concerned, according to P.W.22, she had gone to the College to know the results of the B.A. examinations to which she had appeared and at the time of occurrence, she was not in the house of accused No.1, as projected by the prosecution.
7.3 Insofar as P.Ws.8 to 12 - the eye witnesses to the occurrence, he submitted that for the reasons adverted to above, P.W.8 was not present in the house of P.W.1 as on the date of the occurrence. Apart from the same, his name does not figure in the First Information-Ex.P.1 filed by P.W.1. Further, the names of P.Ws.11 and 12 also do not figure as eye witnesses to the occurrence in the first information-Ex.P.1. In view of the evidence of P.W.1, which goes to show that she was in her house and she came to know about her son having been dragged by the accused to their house, the testimony of these witnesses that they had gone near the house of the accused along with P.W.1 and had
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entered the house and had seen the occurrence is also doubtful.
7.4 He further contended that the testimonies of P.Ws.8, 9, 10 and 12 do not reveal the specific overt-act of each of the accused as against the deceased except making an omnibus statement that all of them assaulted the deceased with stones and blowpipe and accused No.1 assaulting P.W.1. Insofar as P.W.11 is concerned, he submitted that though P.W.11 has spelt out the specific overt act against each of the accused vis-à-vis on deceased and P.W.1, his testimony also cannot be believed in view of the evidence of P.W.1 and recitals in Ex.P.1 as his name does not figure in first information-Ex.P.1.
7.5 He further submitted that the testimony of P.W.10 that he had witnessed the incident cannot be believed because he claims that he is working in a wine shop at Chikodi, he goes to wine shop in the morning
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and returns in the evening. Admittedly, the day on which occurrence took place i.e., 17.09.2009 was a sandy day at Chikodi and, in that view of the matter, P.W.10 being present at Halahatti near the house of the accused or near his house or near the house of P.W.1 by any stretch of imagination having regard to his avocation cannot be believed at all. Therefore, claim of the said witness that he has witnessed the incident cannot be believed.
7.6 He also submitted that insofar as recovery of M.Os.3 to 9 under Ex.P.10 is concerned, the same cannot be believed because the description of M.O.9 under Ex.P.10 does not go to show that there were any semblance or signs of black soot on the same. Apart from the same, it is the case of the prosecution that accused No.8 had wielded blowpipe-M.O.9 on the deceased, but no signs of black soot was also found on the body of the deceased or on the person of P.W.1, who is also alleged to have been assaulted by accused No.8
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with blowpipe. In view of the eye witnesses account being suspicious, recovery of these weapons i.e., M.Os.3 to 9 at the instance of accused No.1 also cannot be believed. Likewise, he also submitted that seizure of M.Os.10 and 12 under Ex.P.13 also cannot be believed as the description of the same under the seizure panchanama reveals that it was a new rope.
8. Learned counsel further submitted that insofar as accused Nos.2 and 4 to 7 are concerned, they were not in the house at all. The evidence of P.W.1 and the eye witnesses i.e., P.Ws.8 to 12, in this connection, cannot be believed that they were present in the house. He further submitted that insofar as accused No.1 is concerned, on that day, he had gone to sandy along with his parents in the morning at about 10.00 a.m. At that time, accused Nos.4 to 6 were not in the house, his wife i.e., accused No.8 was alone in the house along with her child, and she was carrying. After he left the
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house to the sandy, he returned to the house at about 12.30 or 1.00 p.m., as he had not carried sufficient money to purchase the household articles required, more particularly, the blanket. When he was nearing his house, he heard cries of his wife and the child. Hearing the same, he ran to his house. At that time, he saw the deceased holding the saree of his wife-accused No.8 and advancing towards her, as he was after her prior to the date of occurrence. Seeing the same, when he tried to rescue his wife, the deceased desisted the same. At that point of time, he forcibly held him and ditched his head to the wall of his house due to which he sustained the injury and thereafter he also assaulted with the stone which was lying in the house. He had to assault the deceased since he advanced towards his wife and he had done that act in exercise of right of private defence of the person of his wife. Therefore, he has not committed any offence. This is fortified from his evidence as D.W.1. It is further corroborated from the
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evidence of his wife accused No.8 who is examined in the case as D.W.2. Since it is the case of the prosecution that the accused had dragged the deceased to their house and had assaulted the deceased on account of the deceased having an eye on accused No.8, which was resisted by them, the case of the accused Nos.1 and 8 is probablised that on that day, taking advantage of the absence of inmates of the house except for accused No.8, he had trespassed into the house and had advanced towards accused No.8 which suddenly was seen by accused No.1 who immediately reacted to the situation and assaulted the deceased, which act cannot be considered that he has committed murder of the deceased, likewise accused No.8.
9. Learned counsel for accused No.8 in Crl.A.No.2641/2004 adopting the submissions made by the learned counsel, Shri Chandrashekar Chakkalabbi, for other appellants/accused, submitted that,
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admittedly, there is no allegation that accused No.8 had assaulted on the deceased. He further submitted that insofar as the assault alleged to have been made by accused No.8 on P.W.1 with M.O.9 is concerned, the same cannot be believed as the evidence of P.W.1 and other eye witnesses do not inspire any confidence for the reasons which have been submitted by the counsel for the other appellants/accused. He further contended that since the evidence of this accused and that of her husband, who have been examined as D.Ws.1 and 2 in the case, reveals that the deceased had been assaulted in their house on account of he having advanced towards her, taking advantage of her loneliness in her house, it cannot be said that she has committed any offence.
10. Learned counsel for the appellants/accused contended that there is no charge levelled against accused nos.7 & 8 for the offence under Section 302
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read with Section 149 of Indian Penal Code. In view of the evidence of prosecution being untrustworthy, the conviction of the said accused for other offences also cannot be sustained.
11. Learned Trial Judge, without appreciating the evidence of the prosecution witnesses and that of D.Ws.1 and 2 in its right perspective has committed an error in coming to the conclusion that the prosecution has established the charges levelled against the accused which finding is contrary to the evidence on record and also being perverse cannot be sustained and, hence, the same be set aside and the accused be acquitted of the charges levelled against them.
12. Countering the submission of the learned counsel for the appellants/accused, Shri V.M.Banakar, learned Additional State Public Prosecutor, supporting the impugned judgment and order contended that the evidence of P.W.1, who is injured witness, coupled with
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Ex.P.1-first information filed by her clearly goes to show that it is these accused who have committed the murder of the deceased by assaulting him in their house. He further contended that the evidence of P.W.1 is further fortified from the evidence of P.Ws.8 to 12 who have seen the accused dragging the deceased to their house and assaulting him inside the house. Their evidence is also further fortified from the evidence of P.W.19, the Medical Officer, who has first seen the deceased and P.W.1 at Chikkodi Hospital and P.W.20-the Medical Officer who has conducted autopsy over the body of the deceased and has issued post-mortem report as per Ex.P.27. There is nothing on record to discard the testimony of these witnesses. He further contended that the direct evidence coupled with the recovery of M.Os.3 to 9, at the instance of accused No.1, would further go to show that the accused are guilty of the charges with which they are charged which has been framed against them. He also contended that in view of the evidence of
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D.Ws.1 and 2, who are accused Nos.1 and 8, it clearly goes to show that the accused have assaulted the deceased and P.W.1. He further submitted that the evidence of D.Ws.1 and 2 has been rightly rejected by the learned Trial Judge in view of the direct evidence of P.W.1 which is corroborated from the evidence of P.Ws.8 to 12. Therefore, learned Additional State Public Prosecutor submits that the learned Trial Judge, on consideration of the entire material on record has come to the right conclusion in holding that the prosecution has proved the guilt of the accused beyond reasonable doubt and the said finding having been based on facts and evidence, it does not suffer from any infirmity calling for interference in this appeal and therefore, appeals be dismissed.
13 In the wake of the submissions made by the respective counsels, the evidence and documents on record, the points that arise for our consideration are:-
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1) Whether the prosecution has established th at the deceased Umesh has d ied an homicid al death and PW.1 has sustained simple hur t?
2) It so, whe ther the prosecution has
established that the accused are
responsible f or the homicid al death of the deceased and causing simple hur t to PW.1?
3) Whether the impugned judgment and order of the tr ial Judge calls f or any in terf erence?
14. Re-point No.1:
PW.20 is the medical officer, who has conducted autopsy over the body of the deceased. He in his evidence has stated that on 18.9.2009 he conducted autopsy over the body of the deceased and at that time, he noticed the following external injuries on the body of the deceased:-
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1. A sutured wound measur ing 4 cms situ ated on occipital region surrounded by d ifferent contusion on the back of the head.
2. Multiple abr asions were present all over the body, i.e., over the f ace, f ront and side of the neck, righ t shoulder measuring 6'x2 cms' dorsum of right hand and lef t hand, lef t thigh measur ing 10'x5' cms, outer aspect of both angles, inner aspect of lef t elbow measuring 4'x2' cms and over the back.
3. Multiple contusion of varying size and shape diff erently distr ibu ted all over the body (both shoulders and uppers arms, over f ront and back and abdomen and both lower limbs.
On dissection of the body, he found defused contusions in the layer of scalp on the back of the head, sub dural haematoma over the parieto occipital area on both sides. Defused sub aranoid hemorrhage was also present. There were multiple contusions in inter coastal muscles. Multiple contusions were also present over posterior surface of lungs. All other internal organs were
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intact. He has further stated he is of the opinion that the death is due to intra cranial hemorrhage as result of injuries sustained by blunt force impact. He has also stated in the postmortem report issued to the effect that all the injuries are ante-mortem in nature. He has issued postmortem report as per Ex.P.27. This evidence of PW.20 is also corroborated from the evidence of PW.19 - Medical Officer, who had examined the deceased at the first instance at Chikkodi Hospital. Apart from the same, it is further fortified from the evidence of PW.17- ASI, who has held inquest over the body of the deceased and has seen the injuries on the body of the deceased at the time of inquest along with panchas as reflected in postmortem report Ex.P.27. In the cross-examination of these witnesses, nothing has been brought on record to discard their testimony in respect of the injuries, which they have noticed on the body of the deceased, which according to PW.20-medical
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officer has resulted in the death of the deceased. On the other hand, homicidal death of the deceased was also not disputed before us. Therefore, having regard to the evidence adverted to above, we are of the clear view that the deceased Umesh has died on account of injuries sustained on his body and as such, the prosecution has established that the deceased has died an homicidal death.
Insofar as PW.1 is concerned, she claims on account of the assault made, she sustained injuries on her chin. She has been examined by PW.19 -Medical officer at Chikkodi hospital. PW.19 in his evidence stated that on 17.9.2009 at about 3.20 p.m. he examined PW.1 and at that time he noticed that there was bleeding from the gums of PW.1 and there was no fracture of mandible. He has issued the wound certificate in respect of her as per Ex.P.26. This evidence of
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PW.1 is also corroborated from the evidence of PW.8, who is her relative. In the cross- examination of these witnesses namely, PWs.1, 8 and 19, nothing has been elicited to discard their testimony with respect to PW.1 having sustained injuries on her person. Therefore, under these circumstances, we are of the view that the prosecution has also established that PW.1 had sustained injuries on her person.
15. Re - point No.2:
The prosecution in order to connect the accused with the homicidal death of the deceased Umesh and causing simple hurt to PW.1 has relied upon the testimonies of PWs.1, 8 to 12, Ex.P.1 - complaint filed by PW.1 before PW.17 - ASI, and recovery of MOs.3 to 9 at the instance of A.1 under Ex.P.10.
It is the case of the prosecution, on 17.9.2009 at about 1 p.m. or 1.30 p.m. at
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Ambedkar colony in Halatti the accused formed themselves into an unlawful assembly armed with deadly weapons like stones, blowpipe etc., the common object of which was to commit the murder of the deceased and in furtherance of the common object of the unlawful assembly, they dragged the deceased from his house to their house and thereafter, closed the door tied his hands and legs with rope, gagged his mouth with a cloth and assaulted him with stones and blowpipe. When PW.1 intervened to rescue the deceased, she was also assaulted by the accused, due to which, both of them sustained injuries and the deceased succumbed to the same on the same day while being shifted to Belgaum Civil Hospital.
PW.1 is the mother of the deceased. She is also the complaint in the case, who has filed complaint Ex.P.1 before PW.17-ASI. According to her, on the date of the occurrence, she had been
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to sandy at Chikkodi in the morning. By about 1.00 or 1.30 p.m. she was returning to the house via the house of the accused. At that time, she heard the cries of her son - the deceased from the house of the accused. Immediately, she rushed near the house of the accused, at which point of time PWs.8 to 12 were also present at the said place. Thereafter, they entered the house on forcing open the door of the house and at that time they saw the accused assaulting the deceased with stones and blowpipe. According to her, A.1 to A.3 and A.6 assaulted the deceased with stones on the head, hands and legs whereas, A.4 and A.5 assaulted with clubs. When she went to rescue of her son, she was assaulted by A.1, A.3 and A.6 with stones and A.8 with blowpipe. Now it is to be seen whether her testimony is worthy of any acceptance. In her complaint - Ex.P.1, she has claimed that when she and others namely, PWs.8 to 12 entered the house of the
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accused, they noticed hands and legs of her son having been tied, his mouth having been gagged and accused assaulting the deceased. She claims in her evidence and Ex.P.1 that on hearing the cries of her son, she went near the house of the accused. If according to PW.1, as narrated in her first information-Ex.P.1 and in the evidence, if the mouth of her son had been gagged with cloth by the accused, the question of deceased raising cries and on hearing the same PW.1 coming near the house of the accused and entering the house along with PWs.8 to 12, cannot be believed. Further she has also admitted in her cross- examination that on the date of the occurrence she came to know from her neighbours that her deceased son had been dragged by the accused to their house. If that is the case, her claim that on hearing the cries of her deceased son she went near the house of the accused, thereafter entered the house along with PWs.8 to 12 and saw the
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accused assaulting her deceased son, also cannot be believed. The other contradictory version of PW.1 is, she claims that she came to know about the occurrence while she was in the market and thereafter, she came near the house of the accused. In view of inconsistent version of PW.1 about she having seen the occurrence in the house of the accused, it is doubtful whether at all the occurrence had taken place in the manner she has deposed before the Court and narrated in her complaint Ex.P.1. We are aware that she is an injured witness and her evidence cannot be lightly brushed aside being an injured witness. In this particular case for the reasons, which we have adverted to above and in the later part of the judgment also we find her evidence does not inspire confidence to place any reliance. Apart from the same, she claims in her evidence that PWs.8 to 12 informed her that her son had been dragged from her house by the accused and has
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been taken to the house of the accused and they were also present near the house of the accused. But, in her complaint-Ex.P.1, no where she has mentioned the names of PWs.8, 11 and 12 having informed her of the accused dragging her deceased son to their house and the said witnesses also being present near the house of the accused. That would go to show that her testimony is not only trustworthy, but also she has gone to the extent of planting the witnesses. One another circumstance to disbelieve her testimony is, she claims that PW.8 is her relative, he was staying with her and prosecuting his studies in 7th standard at Chikodi. She has claimed that she has produced the documents to show that PW.8 was studying at Chikkodi and staying in her house. The evidence of PW.22-Investigating Officer reveals that no such documents have been produced before him by PW.8. This would clearly go to show that PW.8 at any rate was not in the
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house of PW.1 and had seen the occurrence in the house of the accused on the date of the occurrence.
So far as PWs.11 and 12 are concerned, admittedly, their names do not find a place in the first information. Though they claim that they had informed PW.1 about the accused dragging the deceased from his house and taking to their house and they also having seen the accused assaulting the deceased in their house, since their testimony is not corroborated as to the individual overt act of each of the accused vis-a-vis the deceased and PW.1, it also does not inspire confidence to place reliance on their testimony.
Excluding the above witnesses we are left with only PWs.9 and 10. Insofar as these two witnesses are concerned, they do not specifically spell out the over acts of each of the accused vis- à-vis the deceased and PW.1. In addition, the
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testimony of eyewitnesses namely, PWs.8 and 12 also does not inspire confidence because, they claim that A.8 assaulted PW.1 with blowpipe. We do not find any signs of black soot of smoke on the cloth or body of the deceased or PW.1. That would further indicate that the claim of these witnesses that A.8 assaulted PW.1 with blowpipe cannot be believed. Further, according to these witnesses, the deceased had been tied with rope MO.12, which has been seized under the panchanama Ex.P.14. A perusal of recitals in Ex.P.14 reveals the rope MO.12 with which the prosecution witnesses claimed that hands and legs of the deceased were tied, is a new rope and there is no semblance of any material to show that it had any twist or wrinkle for having used to tie the hands and legs, which is another point to doubt the testimony of these witnesses. Apart from this, these witnesses claim that A.4, A.5 and A.6 were also present in the house and they had assaulted
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the deceased and PW.1. The evidence of PW.22- Investigating Officer reveals that among them, A.4 is the daughter of A.2. A.4 had been given in marriage to one Shashikant of Galatga village. He had landed property at the said place. The said Shashikanth had expired. After his death, A.4 and A.5 were residing at Galatga looking after their lands. Further the evidence of PW.22 also reveals that on that day A.6 had gone to the college to know the results of BA examination to which she had appeared. The suggestion that has been put to PW.1 is that this A.4 and A.5 were not residing in the house of the accused on the date of the occurrence and they were residing at their place Galatga looking after the land belonging to the husband of A.4. A.6, who is the daughter of A.2 as she had appeared for B.Ed examination, she had gone to the college to see the results of the examination to which she had appeared. In view of this admission given by PW.22-
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Investigating Officer, it goes to show that presence of A.4, A.5 and A.6 is doubtful at the time of occurrence. If that is so, the claim of PWs.1, 8 to 12 that these accused also participated in the assault made on the deceased and PW.1 cannot be believed. In that view of the matter, we find that the evidence of these witnesses is untrustworthy.
It is the case of the prosecution that the accused assaulted the deceased on account of he having an eye on A.8, who is wife of A.1, as he was after her. It is definite case of the accused, which has been projected through the evidence of DWs.1 and 2, who are accused Nos.1 and 8 in the case that on the date of the occurrence A.4 to A.6 were not in the house. A.1 had taken his parents A.2 and A.7, who are aged, to Chikkodi not only for medical check up but also to purchase articles to the house, as it was a sandy day. A.8 was alone in the house along with her male child. As the
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deceased was after A.8, taking advantage of her loneliness trespassed into the house of the accused and advanced towards A.8 and by holding her hand started pulling her. A.8 resisted the act of the deceased and also raised cries for help. In the meantime, according to A.1 and A.8, accused No.1, who had gone to sandy along with his parents returned to the house as he had not carried sufficient money for making purchase of the house hold articles. When he was nearing his house, he heard the cries of his wife A.8 and also his male child. Hearing the same, he rushed to his house and at that time he noticed the deceased holding hand of his wife A.8 and pulling her. Seeing the same, being enraged he tried separate them. Since he was not successful, he held his head and ditched to the wall, due to which, the deceased sustained injuries and fell down. Thereafter, he also assaulted him with stones. The evidence of DWs.1 and 2 in this connection is
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consistent and cogent. The motive projected by the prosecution is, as the deceased had an eye on A.8, the accused were nursing grudge and therefore, they had assaulted the deceased on that day. The evidence of DW.1/A.1 reveals that since the deceased had trespassed into their house on that day taking advantage of the loneliness of A.8 and advanced towards her by holding her hand and was dragging her, seeing the same, having been enraged has used force on the deceased, due to which he sustained injuries, to which he has succumbed. In the light of these materials on record, we are of the view, it cannot be said that the accused Nos.1 to 8 have committed the murder of the deceased as projected by the prosecution. On the other hand, accused No.1 has used force against the accused having found the deceased holding the hand of his wife- A.8 and dragging her. The act of A.1, in our view, by no stretch of imagination in the background in which
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the occurrence has taken place, be said that he has committed the murder of the deceased. The trial Judge has not addressed himself on these aspects, despite these materials being on record thereby has committed an error in holding that the prosecution has established the charges levelled against the accused. On re-appreciation of the entire evidence on record, which we have adverted to above, we find that the evidence of the direct witnesses including PW.1 for the reasons, which we have adverted to above, is untrustworthy and A.1 and A.8 in the circumstances cannot be said that they have committed the murder of the deceased. Apart from the same, we find that no charge has been levelled against A.7 and A.8 for the offence under Section 302 of IPC. Therefore, under these circumstances, we are of the view that the finding of the trial Judge that the accused are guilty for the offences with which they are charged being
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contrary to the evidence on record and perverse, the same cannot be sustained. In the result for the foregoing reasons, we proceed to pass the following:-
ORDER i. Criminal Appeal Nos.2641/2011 and 2647/2011 are allowed.
ii. The impugned judgment and order of conviction and sentence passed on the appellants/accused dated 21.03.2011 in S.C. No.142/2010 on the file of Fast Track Court- I, Chikodi, is hereby set aside. They are acquitted of the charges levelled against them.
iii. Among the appellants/accused, A.1
- Bhimu Shankar Damannavar and A.2 - Shankar Ammakka Dammannavar, are in judicial custody. They are ordered to be set at liberty forthwith, if not required in any other case.
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iv. Insofar as other appellants - A.4 to A.8 in both these appeals are concerned, they are on bail pursuant to the order passed by this Court. The bail bonds executed by them and their sureties stand discharged. If any of the accused have deposited the fine amount imposed pursuant to the order passed against them, the same is ordered to be refunded to them.
SD/-
JUDGE SD/-
JUDGE.
MRK/KMS/SA