Karnataka High Court
State Of Karnataka, vs Rudrayya Chambayya Hosmath, on 8 February, 2017
Equivalent citations: 2017 (2) AKR 396
Bench: Anand Byrareddy, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 8th DAY OF FEBRUARY, 2017
PRESENT
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
AND
THE HONOURABLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL No.2571/2013
BETWEEN:
State of Karnataka
Through Kittur Police Station,
Represented by Additional
State Public Prosecutor,
Advocate General's Office,
High Court Circuit Bench Unit,
Dharwad. .. APPELLANT
(BY Shri V.M.Banakar, Additional State Public
Prosecutor)
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AND:
1. Rudrayya Chambayya Hosmath
Age 25 years, Occupation: Agriculture,
R/o Hunshikatte, Taluk: Bailhongal,
District Belgaum.
2. Chambayya Ningayya Hosmath
Age: 52 years, Occupation: Agriculture,
R/o Hunshikatti, Taluk: Bailhongal,
District Belgaum.
3. Gangawwa W/o Chambayya Hosmath
Age: 49 years, Occupation: Household work,
R/o Hunshikatte, Taluk: Bailhongal,
District Belgaum.
4. Smt. Rudrawwa W/o Basayya Chikmath
Age: 37 years, Occupation: Household,
R/o Hunshikatti, Taluk: Bailhongal,
District Belgaum. .. RESPONDENTS
(By Shri J.Basavaraj, Advocate)
This Criminal Appeal is filed under Section 378(1)
and (3) of the Code of Criminal Procedure, 1973 seeking
to grant leave to appeal against the order of acquittal
dated 31.10.2012 passed by the P.O., Fast Track Court,
Bailhongal, in S.C.No.171/2011 and etc.
This appeal coming on for hearing this day, ANAND
BYRAREDDY .,J delivered the following :-
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JUDGMENT
Heard the learned Additional State Public Prosecutor appearing for the appellant and the learned counsel for the respondent - accused.
2. The State is in appeal questioning the acquittal of the accused in the following circumstances:
It was the case of the prosecution that according to the complaint by one Rudravva Mahantesh Yattinamani, resident of Hunshikatti village, she had stated that there is the Rudraswami Matha at Hunshikatti in Bailhongal taluk. The Poojas at the said Matha are performed by the branches of the family of the accused, whereby they take annual turns in performing the Poojas. It was the turn of the complainant from the previous Mahanavami festival to perform the Poojas at the Matha. The complainant's aunt, Parvatewwa, was said to be an officer in the Social :4: Welfare Department at Ranebennur and she had two sons, namely, Chanabasappa and Siddayya.
That on 17.06.2010, Parvatewwa Hosamath is said to have visited Hunshikatti to have her house painted and she had come there along with her nephew Siddayya. It was alleged that Siddayya was particularly brought to perform the Poojas at the Matha and that at about 11.00a.m., when Rudravva and Siddayya were collecting wood in the backyard of the complainant's home, the accused is said to have opened a window shutter and on seeing this, accused no.1 is said to have abused Siddayya and Siddayya, in turn, went to close the window shutter.
Inspite of which, accused no.1 is said to have started abusing and assaulting Siddayya. Following this, on the next day, namely, on 18.6.2010, at about 6.00 p.m., when the complainant was cleaning the Matha, Siddayya also was said to be present. At which time, accused no.1 came :5: there holding a weapon namely, a Koita in his hand, accusing Siddayya of being the main cause for the quarrel and acrimony between the families, asked him to go back to his village and on seeing this altercation, the complainant Rudravva is said to have intervened and tried to pacify them, and when accused no.1 started to assault Siddayya, the complainant tried to prevent the blow and in the process, her left hand was hurt with the Koita and she sustained an injury. On hearing this commotion, Parvatevva is said to have arrived there and upon seeing her, accused nos.2 and 3 are said to have assaulted Parvatevva on her head and she also had sustained injuries. The injured were then rushed to Hunshikatti Government Hospital and thereafter to the KLE Hospital, Belgaum. In this background, a complaint was lodged by Rudrevva on 19.6.2010 at about 15 minutes past mid night at the KLE Hospital, Belgaum. It was alleged that :6: accused nos.3 and 4 had abetted accused nos.1 and 2 in assaulting and causing injuries to the victims and therefore it was alleged that the accused had committed offences punishable under Sections 323, 504, 109 and 307 read with 34 of the Indian Penal Code, 1860 (Hereinafter referred to as 'IPC', for brevity).
3. On the basis of the said complaint, a case was registered and after further investigation, a charge sheet was filed and the Magistrate having taken cognizance of the offence and since the case was exclusively triable by the Sessions Court, the case was committed to the Sessions Court and numbered as SC 171/2011. The accused had pleaded not guilty and claimed to be tried. Thereafter, the prosecution had examined 18 witnesses and had got marked 24 exhibits and other material objects. Thereafter, the court below had framed the following points for consideration:
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" 1. Whether the prosecution proves beyond all reasonable doubts that on 18.6.2010 at 6 p.m. at Varandha of Rudraswami Math at Hunshikatti village when the complainant and Siddayya were present cleaning the dust, at that time accused Nos.1 to 4 in prosecution of their common intention by keeping the grudge against the complainant and said Siddayya for the previous quarrel which took place in between them on 17.6.2010 abused the said Rudravva and Siddayya in filthy language and there by gave provocation to them knowing that such provocation would cause them to break the public peace and there by committed an offence punishable u/s 504 r/w sec 34 of IPC?
2. Whether the prosecution proves beyond all reasonable doubts that the accused on the above said date, time and place further in prosecution of their common intention, at the instigation of A3 and A4, A1 came holding Koyata in his hand abused Siddayya and at that time the complainant came to rescue the said Siddayya and in that process A1 gave blow on the fore arm above the elbow of left hand of the :8: complainant and caused injuries to the complainant and on hearing this, Paravattewwa came to rescue the complainant and Siddayya at that time A1 also gave blow with Koyata on the head of said Paravatewwa and there by caused injuries to them and accused have committed an offence punishable u/s 323 r/w sec 34 of IPC?
3. Whether the prosecution proves beyond all reasonable doubts that the accused Nos.1 to 4 in prosecution of their common intention on the alleged date, time and place, at the time of incident A3 and 4 abated A1 and 2 by saying that don't leave them and finish off the complainant, Siddayya and Paravatewwa and there by committed an offence punishable u/s 109 r/w sec 34 of IPC?
4. Whether the prosecution proves beyond all reasonable doubts that the accused persons on the alleged date time and place in prosecution of their common intention, assaulted the complainant and Paravatewwa and caused injuries with Koyata and there by attempted to murder said complainant and :9: Paravatewwa and there by committed an offence punishable u/s 307 r/w sec 34 of IPC?"
The court below had answered all the points in the negative and the accused were acquitted. It is that which is the subject matter of the present appeal.
4. The learned Additional State Public Prosecutor in advancing the arguments in favour of the appellant - State, would contend that there is no proper appreciation of evidence by the court below and therefore, erroneous conclusions have been drawn. It is urged that PWs.1 and 6 were injured witnesses and PW.8 was an independent eye witness to the incident. They have in their evidence specifically and categorically narrated the overt acts of each of the accused and the injuries sustained by : 10 : the victims as being serious in nature, all of which have been glossed over by the trial court in seeking to point out certain minor inconsistencies in the evidence of the said witnesses and therefore the same has resulted in a miscarriage of justice.
In this regard, the learned Additional State Public Prosecutor takes us through the record to emphasize and demonstrate that the prosecution had certainly proved its case beyond all reasonable doubt and the court below was in error in acquitting the accused in the face of cogent material evidence in support of the charges against the accused.
5. The learned Counsel for the respondent- accused, on the other hand, would point out that what has been referred to as minor infirmities and inconsistencies are actually fatal lacuna in the case : 11 : of the prosecution. In that, there is total contradiction between the evidence of PWs.1 and 6 and since both are injured witnesses, who were involved in the same incident at the same time and if there is complete contradiction in their testimony which is not supported by any witness for the prosecution, it cannot be said that they are minor inconsistencies, on the basis of which the court has acquitted the accused. The lack of consistent evidence would go to the root of the matter and since the burden was on the prosecution to establish its case beyond all reasonable doubt, it could not be said that the trial court was in error in acquitting the accused on the basis of the infirmities, which the trial court has painstakingly analysed in a detailed judgment, which cannot be faulted.: 12 :
6. On a consideration of these rival contentions and on close examination of the record, it is indeed found that the court below has opined that the prosecution had not placed positive evidence on record, because first of all, PW.1 had not deposed in terms of the complaint Exhibit P.1. He had failed to indicate as to how the dispute started. Further, the claim that it was the turn of PW.1 to perform the Pooja had not been demonstrated and the temple at which Pooja was to be performed has a very small entrance. According to PW.8, accused no.1 was not carrying any weapon in his hands. It is these infirmities which has prompted the court to hold that the evidence was neither cogent nor was corroborated. When the evidence of PWs.1 and 8 are juxtaposed as regards the injuries sustained by PWs.1 and 6 and as regards : 13 : the treatment that was obtained or about first aid that was given to the victims at the Hunshikatti Government Hospital, there are contradictions. It is also found that the prosecution has failed to examine three crucial witnesses, namely, Thayamma, Shantavva and Mohan Uppin, who are said to have shifted the injured to KLE Hospital, Belgaum from Hunshikatti Government Hospital. The statements of those witnesses were also not recorded.
7. Yet another doubtful circumstance was the version of PWs.1 and 6, which are totally contradictory to each other, whereby PW.1 has stated about the first aid treatment provided at the Hunasikatti hospital, in that, it was Dr.Patil who had provided treatment and PW.6 has stated that their wounds were bandaged and they were on saline : 14 : drips after they were referred to the KLE Hospital and that the first aid was provided at the KLE Hospital, Belgaum and this was totally contradictory to the evidence of PW.12, who was a doctor who had provided treatment to PWs.1 and 6. Further, the wound certificates Exhibits P.10 and P.11 did not mention the nature of the weapon that was used in causing the alleged injuries and Exhibits P.12 and P.13 referred to the weapon used as a sickle. But the case of the prosecution itself was that accused no.1 had assaulted PW.1 and 6 with a koita. The court has pointed out that there is vast difference between koita and sickle. To fill up this gross contradiction, as to the definition or the nature of the weapon, PW.12 has sought to provide an explanation to reconcile the contradiction. But that would not clear the doubt that has created about the : 15 : nature of the weapon that was used. It is also pointed out by the court below that according to the Medical Practitioner who had tendered evidence, namely, PW.12, who was a private doctor and who has also stated in his evidence that insofar as the injuries mentioned in Exhibits P.10 and P.11 may be caused even if a person falls from a ladder. Whereas the case of the prosecution was that the injuries were caused with a koita by accused no.1 which is also a circumstance which cannot be reconciled. As the injuries that may be caused in falling from a ladder would be completely of a different nature than those which may be caused by a koita. This again the court finds as an odd circumstance. The medical evidence repeatedly referred to the weapon as a sickle throws a serious doubt about the weapon that was used and MO.1, the alleged koita which was : 16 : seized and having been sent to PW.12. It is noticed that there was more than two months delay in submitting the same for such inspection by PW.12 and there is some confusion even as regards the same in view of PW.15 having said that MOs.1 and 2 were sent to the Forensic Science Laboratory, Belgaum through PWs.16 on 8.9.2010 and the authority of the Forensic Science Laboratory (FSL) having returned the same after examination and therefore the said weapons were in the custody of the FSL as per the charge sheet note. In this circumstance, the trial court has pointed out that PW.12 having received MO.1 for examination on 8.9.2010, when the weapon was actually lying with the FSL, Belgaum was a remote possibility and this was a doubtful circumstance which again was not sought to be reconciled or explained by the : 17 : prosecution. As regards the scene of occurrence, it is found by the court below that the prosecution has miserably failed to prove the same because the panch witness had all turned completely hostile and has not supported the case of the prosecution as to the place of the incident and the total contradiction of the testimony of PWs.1 and PW.6 regarding the incident is also a circumstance which has proved fatal to the case of the prosecution. In this manner, the trial court has pointed out other infirmities as regards the investigation, the spot sketch, the panchanama, the recovery of incriminating material, all of which was found to be irregular and not in accordance with law. And particularly, the prosecution having failed to prove the mens rea on the part of the accused and in the absence of any criminal background of the accused, the court below : 18 : has rightly negated the case of the prosecution and has acquitted the accused.
8. We do not find any fault committed by the trial court in its well considered judgement. The appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE nv