Karnataka High Court
Tirupati S/O Kamanna Chigrihal And Ors vs The State Through on 3 January, 2023
CRL.A.No.3548/2013
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF JANUARY 2023
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR.JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO.3548/2013
BETWEEN:
1. TIRUPATI
S/O KAMANNA CHIGRIHAL
AGE: 25 YEARS
OCC.: AGRICULTURE
2. HALEPPA
S/O CHANDAPPA BADIGER
AGE:40 YEARS
OCC: AGRICULTURE
3. SIDDAPPA
S/O CHALLAGEPPA CHIGRIHAL
AGE: 50 YEARS
OCC: AGRICULTURE
4. RAGHAPPA @ RAGHAVENDRA
S/O CHANDAPPA CHIGRIHAL
AGE: 22 YEARS
OCC: AGRICULTURE
5. MONESH
S/O KAMANNA CHIGRIHAL
AGE: 20 YEARS
OCC: AGRICULTURE
CRL.A.No.3548/2013
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6. SAHEBGOUDA
S/O CHANDAPPAGOUDA BIRADAR
7. SHIVAPPA
S/O CHANDAPPA CHIGRIHAL
AGE: 25 YEARS
OCC: AGRICULTURE
8. BASWARAJ
S/O SHARANAPPA BIRADAR
AGE: 40 YEARS
OCC: AGRICULTURE
ALL ARE R/O SHAKAPUR VILLAGE
TQ: SHORAPUR, DIST: YADGIR ...APPELLANTS
(BY SRI NANDKISHORE BOOB, ADVOCATE)
AND:
THE STATE THROUGH C.P.I.
HUNASAGI POLICE STATION RESPONDENT
(BY SRI.PRAKASH YELI, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER OF CONVICTION DATED 16.02.2013 PASSED IN
SESSIONS CASE NO.26/2010 ON THE FILE OF THE SESSIONS
JUDGE AT YADGIRI, CONVICTING THE ACCUSED/APPELLANTS
FOR THE OFFENCE P/U/S. 143, 147, 148, 324, 326, 302, 504
R/W 149 OF IPC.
THIS CRIMINAL APPEAL PERTAINING TO KALABURAGI
BENCH HAVING BEEN HEARD AND RESERVED ON 19.10.2022
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
K.S.MUDAGAL J., SITTING AT PRINCIPAL BENCH THROUGH
VIDEO CONFERENCING DELIVERED THE FOLLOWING:
CRL.A.No.3548/2013
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JUDGMENT
Aggrieved by the order of conviction and sentence passed against them for the offences punishable under Sections 143, 147, 148, 302, 324 read with section 149 IPC, accused Nos.2 to 9 in S.C.No.26/2010 on the file of the District and Sessions Judge, Yadgir have preferred the above appeal.
2. The appellants and accused No.1 were tried in S.C.No.26/2010 for the aforesaid offences on the basis of the charge sheet filed by Kembhavi Police in Crime No.44/2009 of their Police Station. Crime No.44/2009 was registered by Kembhavi police on the basis of complaint of PW.1 as per Ex.P1. During pendency of S.C.No.26/2010 accused No.1 died. Therefore the case against him abated.
3. The case of the prosecution in brief is as follows:
(i) PW.1 is the cousin brother of deceased Devappa. That accused No.1 was running a Fair-Price shop CRL.A.No.3548/2013 4 in the village Shakapura under the Public Distribution Scheme. Instead of distributing the said groceries to beneficiaries, he was selling them to the traders in market.
The villagers complained to deceased Devappa about such acts of accused No.1. Devappa admonished accused No.1 for such of his acts. Being enraged by that accused No.1 and other accused were nursing ill-will against Devappa.
(ii) In that background on 24.04.2009 at 8.30 a.m. at their village entrance, the accused being members of unlawful assembly with common object of committing murder of Devappa armed with clubs and stones accosted him. Accused No.1 abused Devappa in foul language for advising him regarding Fair-Price distribution and all of them started assaulting him with sticks and stones. When PW.1 came to his rescue, accused No.1 assaulted PW.1 with stick on his head. Accused No.2 assaulted him with stick on the left side of his head. Accused No.8 assaulted him on his head with a stick causing simple injuries to him. Further accused Nos.3, 5 to 7 and accused No.9 assaulted Devappa with sticks on his head, legs and chest and CRL.A.No.3548/2013 5 accused No.4 felled him to the ground and tried to throttle him. Consequently, Devappa suffered grievous injuries.
(iii) PW.5 Siddanagouda shifted injured PW.1 and Devappa to Kembhavi Hospital in his Auto-rickshaw. In the said hospital after giving preliminary treatment, PW.8/ Doctor on finding that the condition of Devappa is serious referred him to Gulbarga Hospital for higher treatment. From there, Devappa was referred to Ashwini Hospital, Solapur. On taking treatment PW.1 went to Kembhavi Police Station and filed the complaint as per Ex.P1. When Devappa was taking treatment in Ashwini Hospital, Solapur on 27.04.2009 he succumbed to injuries. Therefore, the offence under Section 302 was included in the case. After completion of the investigation, Kembhavi police filed the charge sheet as aforesaid.
4. The learned Sessions Judge relying on the evidence of PW.1 the injured eyewitness, PWs.2 to 4 the eyewitnesses, the evidence of PW-5, the medical evidence and the evidence of the official witnesses by the impugned CRL.A.No.3548/2013 6 judgment, convicted the accused for the various offences and sentenced them as per the chart below.
Convicted for Fine Sl. Accused the offences Sentence of Default amount No. Nos. punishable imprisonment sentence in Rupees under Section 1 A2 to A9 143 of IPC S.I of one month 2 A4, A8 & 147 of IPC S.I of two - -
A9 months
-
3 A2, A3, 148 of IPC S.I of three - -
A5 to A7 months
3 A2 to A9 324 read with S.I of two - -
Section 149 of years
IPC
4 A2 to A9 302 read with Life 10,000/- S.I of two
Section 149 of Imprisonment each years
IPC
5. Sri Nanda Kishore Boob, learned Counsel for the appellants seeks to assail the impugned order of the conviction and sentence on the following grounds:
(i) There are material contradictions and inconsistencies in the evidence of the prosecution with regard to involvement of the appellants.
(ii) PW.1 in the complaint named only 5 accused.
In his further statement, he implicated in all 13 accused. However, the Police filed charge sheet against 9 out 13 CRL.A.No.3548/2013 7 accused. That itself shows that there was an attempt on the part of the prosecution witnesses to rope many others in the case.
(iii) According to the evidence of PW.13 and Ex.P19, the victim Devappa was brought to the Hospital at Solapur with the history of fall. Therefore, the evidence of prosecution with regard to the death being homicidal was inconsistent.
(iv) There was unexplained delay in registering the FIR and delivering the same to the Court.
(v) The alleged eyewitnesses were all the relatives of the deceased. Therefore they are interested witnesses. Though the scene of offence was a populated area, no independent witnesses were examined to prove the incident.
(vi) The evidence on record does not show that there was any premeditation or common object amongst the accused to commit the offence.
CRL.A.No.3548/20138
(vii) The trial Court failed to appreciate the evidence in a sound manner and apply the relevant law.
6. Per contra the learned ASPP justifies the impugned order of conviction and sentence on the ground that PW.1 being the injured eyewitness, carries the higher credence. The other eyewitnesses being the residents of the same village and PW.5 being the person who shifted the injured to the hospital, their presence at the scene of offence and occurrence of crime is acceptable. At the earliest point of time, the history of injuries being homicidal was given. There was no suggestion to PW.5 that he had given the history of fall at Solapur Hospital. Therefore the trial Court was justified in preferring the evidence of PWs.1 to 5 to the evidence of PWs.10 and 13 and Ex.P19. The submission with regard to delay in filing the complaint, implication of accused Nos.6 to 13 by subsequent statement were all rightly analysed by the trial Court. There are no grounds to interfere with the impugned judgment and order passed by the trial Court. CRL.A.No.3548/2013 9
7. On considering the rival submissions and the material on record the question that arises for consideration is:
"Whether the impugned judgment and order of conviction and sentence is sustainable in law?"
Reg. Proof of injuries:
8. The first question is whether the injuries suffered by PW.1 and victim Devappa and the death of Devappa due to such injuries is proved. To prove the said fact, the prosecution relied on the evidence of PW.1 to PW.5, PW.8 the doctor who treated PW.1 and deceased at Kembhavi hospital, PW.10 who conducted the Post-mortem of the dead body of Devappa and PW.13 the doctor who attended Devappa in Ashwini Hospital, Solapur along with one Dr.S. Prabhakar and Ex.P5, P6, P12 and P19.
9. According to PWs.1 to 5 and PW.8, after PW.1 and Devappa suffering injuries, their brother PW.5 shifted them in his auto-rickshaw to the Government hospital CRL.A.No.3548/2013 10 Kembhavi. There PW.8 the Medical Officer of Kembhavi Primary Health Centre examined them and issued the wound certificates Exs.P5 and P6. According to the evidence of the said witnesses since the condition of Devappa was deteriorating, PW.8 referred him to higher medical centre. Accordingly, PW.5 took him to hospital at Kalaburagi and from there to Solapur.
10. In the cross examination of PW.8, PW.10 - the doctor who conducted autopsy and PW.13, the injuries suffered by PW.1 and Devappa were not disputed. The aforesaid evidence shows that PW.1 had suffered the following injuries:
(i) C.L.W.over the middle of scalp, measuring 6 X 2 cms.
(ii) C.L.W. over the post. aspect scalp, measuring 4 X 1.5 cms
(iii) C.L.W. over the left side of scalp, measuring 4 X 1.5 cms.CRL.A.No.3548/2013
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11. The evidence of PW.8 and Ex.P5 show that PW.8 found the following injuries on Devappa.
(i) Tenderness Fracture over the Head, middle of scalp
(ii) Tenderness fracture over the front of chest. The evidence of PWs.10, 13 and Ex.P12 post-mortem report and Ex.P19 the case sheet of Devappa speak about the injuries suffered by Devappa. In the evidence of PW.10 the injuries found on the dead body were not disputed. According to PW.10 and the post-mortem report Ex.P12 the following injuries were found on the dead body.
i) Abrasion of (2 cm X 2cm) over left lower leg
ii) Abrasion of (4cm x 0.5 cm.) over left arm.
iii) Haematoma about (4cm X 2cm X1cm) over the skull under scalp on left parietal region
iv) Linear fracture line horizontally over the parietal bone about 15 cm long.
v) Brain matter - congested oedematous extradural haematoma about 50 gms of Left Parietal region of skull - Diffuse subdural haematoma over Right Frontoparietal region, multiple hemorrhagic contusion over frontal region.
CRL.A.No.3548/201312
12. The opinion of PW10 regarding the cause of Death was 'Head Injury'. Thus it becomes clear that PW.1 and Devappa had suffered the above referred injuries and death of Devappa was due to the head injuries mentioned above.
Reg. Nature of injuries and death:
13. According to the prosecution, the injuries found of PW.1 and Devappa were homicidal one. PWs.1 to 5 in unison deposed that accused Nos.1 to 9 were authors of those injuries. So far as Devappa it was contended that those injuries were due to a fall. But so far as the injuries of PW.1 except the denial of assault by them, the accused did not make out any defence regarding cause of those injuries.
14. Overt acts in the complaint Ex.P1 are as follows:
i) Accused Nos.1 and 2 assaulted PW.1 with club on his head and left side of his head; CRL.A.No.3548/2013 13
ii) Accused No.3 assaulted Devappa on his head with club;
iii) Accused No.5 assaulted on the knee of Devappa with the stone ;
iv) Accused No.4 felled him to the ground and attempted to throttle him.
15. Later PW.1 said to have given a statement as per Ex.P2 implicating 13 accused. Though Ex.P2 was admitted in the evidence as complaint, the trial Court rightly held that the same being the further statement of the complainant under Section 161 of Cr.P.C. is inadmissible in law.
16. PW.1 deposed that he found 8 to 10 persons assaulting Devappa near the entrance of his village and he went to his rescue. He further says that taking exception to that, accused assaulted him with club on his head causing him injuries. The specific overt acts attributed by him to accused in his deposition are as follows:
i) Accused Nos.1, 2 & 8 assaulted him with club on his head.CRL.A.No.3548/2013
14
ii) Accused No.3 assaulted Devappa with a club on the back of his head.
iii) Accused Nos.6 and 7 assaulted Devappa with stone and club and caused internal injuries.
iv) Accused No.5 assaulted with stone and club on the leg of Devappa.
v) Accused No.4 attempted to throttle Devappa.
vi) Accused No.9 instigating the other accused to finish Devappa, kicked Devappa by his legs.
17. When all the accused thinking that Devappa died, dropped the weapons there only and went away. PW.1 speaks about PWs.3 and 4 trying to pacify the quarrel and withdrawing themselves due to fear and then PW.5 coming to the scene of offence and shifting himself and Devappa to Kembhavi Hospital. He deposed that after taking treatment in Kembhavi Hospital, he went to Kembhavi police station and got written the complaint and filed the same. He also deposes about PW.5 on medical advise taking Devappa to Gulbarga and from there to Solapur for higher treatment and death of Devappa in CRL.A.No.3548/2013 15 Solapur Hospital. He also speaks about the motive for commission of crime.
18. PWs.2 to 4 depose that when they had come to have tea near the scene of offence, they found the accused assaulting Devappa, PW.1 going to the rescue of Devappa and accused assaulting him also. The specific overt acts spoken by PWs.2 to 4 are as follows:
PW.2
(i) Accused Nos.1, 2 and 8 assaulted PW.1 with clubs on his head.
(ii) Accused No.3 assaulted Devappa with club on his head.
(iii) Accused Nos.6 and 7 assaulted Devappa with stone and club on his stomach.
(iv) Accused No.4 attempted to throttle Devappa.
(v) Accused No.5 assaulted on the leg of Devappa with the stone.
(vi) Accused No.9 instigating the other accused to finish Devappa.
PW.3
(i) Accused Nos.1, 2 and 8 assaulted PW.1 with clubs on his head.
CRL.A.No.3548/201316
(ii) Accused No.3 assaulted Devappa with club on the back of his head.
(iii) Accused Nos.6 and 7 assaulted Devappa with stone.
PW.4
(i) Accused Nos.1 and 2 assaulted PW.1 on his head with clubs.
(ii) Accused No.3 assaulted Devappa with club on his head.
19. As rightly pointed out by the trial Court, PWs.1 to 4 being the same villagers and PW.1 being the injured eyewitness, their presence at the scene of offence is natural and probable. Further in the evidence of PW.1 and PW.8 the injuries suffered by PW.1 were not denied. The evidence of PWs.1 to 4 was corroborated by the evidence of PW.5 who shifts the injured to the hospital and the medical evidence of PW.8 to the effect that PW.1 and Devappa were taken to the hospital for treatment with a history of assault.
20. It was contended that PWs.1 to 5 being the relatives of the deceased, they are interested witnesses. CRL.A.No.3548/2013 17 So far as PW.8 it was contended that he has not given medico legal intimation to the police, therefore his evidence is doubtful. PW.8 says that he has given only an oral intimation to the police. As rightly pointed out by the trial Court, admittedly, the accused and the deceased party are related to each other. Thus, PWs.1 to 5 happen to be the relatives of the accused and the deceased as well. Therefore there is no merit in the contention that PWs.1 to 5 shall be disbelieved for being relatives of the deceased.
21. It is settled law that, all the witnesses/relatives of the victim cannot be branded as interested witnesses unless it is shown that implication or likely conviction of the accused in such case is going to confer some benefit on such related witnesses. In the entire cross-examination of PWs.1 to 5, the accused did not even suggest that their prosecution/conviction is going to benefit those witnesses. Therefore the trial Court has rightly rejected such contention of PWs.1 to 5 being interested witnesses. So also the failure of PW.8 in making an entry in MLC register CRL.A.No.3548/2013 18 or issuing written MLC intimation to the police themselves do not belie the evidence of PWs.1 to 5. PW.1 being the injured eyewitness, as rightly pointed out by the trial Court, carries higher credence.
22. So far as the contention of the Investigating Officer not examining the independent witnesses, first of all, there is no concrete evidence to show that some other people had gathered at the scene of offence. Secondly, it is the settled position of law that defective investigation if any, itself does not demolish the evidence of the eyewitnesses and the injured eyewitnesses, if the same is found credible. Similarly, PWs.2 to 4 not going to the rescue of PW.1 and Devappa itself does not make their evidence unreliable as they say that being scared of their safety they did not intervene. The evidence on record shows that the accused armed with clubs and stones were assaulting Devappa. The evidence further shows that when PW.1 went to the rescue of Devappa, he suffered the same fate. Under such circumstances, it is the natural human CRL.A.No.3548/2013 19 conduct that PWs.2 to 4 first think of their safety instead of intervening between the assailants and the victims. Moreover they say that they withdrew from the process of rescue due to fear of assault. Thus the trial Court rightly rejected the aforesaid contentions of the accused with regard to the reliability of evidence of PWs.1 to 4.
23. So far as the contentions that there are contradictions and inconsistencies in the evidence of PWs.1 to 4, the specific overt acts attributed by PWs.1 to 4 are already extracted above. The incident took place on 24.04.2009. PWs.1 to 3 were examined on 28.02.2012. PW.4 was examined on 29.02.2012. Thus it is clear that they were examined before the Court about three years of the incident. Therefore one cannot expect each of them to reproduce the videographic account of the incident as human memory is bound to fade in course of time. Therefore the trial Court was justified in rejecting such contentions so far as accused Nos.1 to 5. CRL.A.No.3548/2013 20
24. Citing the fact that in the first information report, PW.1 named only five accused, in further statement he implicated 13 accused and the Investigating Officer himself dropped 4 out of them, it was contended that there was an attempt on the part of PW.1 to PW.4 to falsely rope all the accused in the case, therefore accused Nos.6 to 9 are entitled to the benefit of the said doubt. The trial Court rejected such contention on the ground that since PW.1 was illiterate he might be unaware of the omission of accused Nos.6 to 13 in the complaint.
25. It is to be noted that the incident took place on 24.04.2009 at 8.30 a.m. The first information report was registered on the same day at 1.00 p.m. The first information report was delivered to the Magistrate on the same day at 6.25 p.m. The trial Court itself held that Ex.P2 the alleged second complaint was inadmissible in evidence. Neither PW.1 nor PW.11 who registered the first information report and received Ex.P2 do not state when exactly Ex.P2 was given. PW.11 says that after registering CRL.A.No.3548/2013 21 the first information report, he visited the hospital at Kembhavi, then visited the scene of offence at Shakapura, there PW.1 gave another complaint as per Ex.P2 implicating thirteen persons. The evidence of PWs.1 and 11 coupled with Ex.P3 spot mahazar, PW.6 the spot mahazar witness show that PW.11 conducted the spot mahazar on that day between 4.00 p.m. and 5.00 p.m. If the names of other accused were revealed on the same day, naturally by the time Ex.P13 was delivered to the Magistrate, the names of other accused should also have been forwarded to the Court. It is also material to note that out of 8 additional accused, the Investigating Officer himself found that material against four of them was not sufficient to lay the charge sheet.
26. In the first information report, the overt acts were attributed only against accused Nos.4 and 5. As spoken by PW.1 himself, accused Nos.1, 2 and 6 were full brothers and accused No.3 is the father-in-law of accused No.1. Accused Nos.3, 5 and 8 are full brothers. Accused CRL.A.No.3548/2013 22 Nos.7 to 9 were also closely related to accused No.1. Therefore the chance of PW.1 implicating them after deliberations in the background of the incident cannot be ruled out. When there is no material to bridge such gap, convicting and sentencing accused Nos.6 to 9 despite such gap, based on inferences and hypothesis is likely to lead to injustice to them. Therefore, appellant Nos.5 to 8/accused Nos.6 to 9 are entitled to acquittal on the ground of benefit of doubt.
27. So far as the defence contention with regard to delay in registering and delivering the FIR, the trial Court rightly held that the first concern of PW.1 who himself was injured and PWs.2 to 4 was to attend to the medical needs of PW.1 and the deceased. Therefore delay if any was comprehendible. Further there was no inordinate delay so as to deny the genesis of the incident. Similarly, the trial Court rightly rejected the contention that PW.3's evidence to the effect that the accused picked up the sticks lying nearby shatters the evidence of PWs.1, 2 and 4 the other CRL.A.No.3548/2013 23 eyewitnesses. Since PW.1 was the injured eyewitness, his evidence carries more weight as compared to PW.3. Moreover, having regard to the time gap between the incident and the examination of PW.3 before the Court, such omissions or contradictions are bound to occur and they are natural.
28. Relying on the evidence of PW.13 and Ex.P19, it was contended that the injuries of Devappa were due to fall and the trial Court committed error in overlooking such evidence. It is no doubt true that in Ex.P19 the case sheet of Devappa, he was allegedly brought to the hospital with the history of fall. Soon after the incident on 24.04.2009 at the first instance in Kembhavi Hospital and in the police station, the history of assault was given. The doctor by name Dr.S.Prabhakar who said to have made such entries in Ex.P19 on 25.04.2009 at 9.20 p.m. was not examined. PW.13 was not aware of the name of the person who gave such history. He says that he has not recorded the history. CRL.A.No.3548/2013 24 Therefore the evidence of PW.13 in that regard was only hearsay evidence.
29. Similarly, the evidence of PW.9 the Assistant Sub-Inspector of Police, Solapur police station, Solapur with reference to MLC intimation cannot be relied as the person who made entries in MLC register or issued MLC intimation was neither named nor examined. He himself states that on 26.04.2009 he recorded the statement of PW.5. He further states that PW.5 in his statement Ex.P9 revealed that accused Nos.1 to 5 and 8 assaulted his brother Devappa with sticks and caused him injuries. The above facts and circumstances go to show that the entries in Ex.P19 with regard to history of fall do not inspire the confidence of Court. Therefore the trial Court was justified in accepting the evidence of injured eyewitness, other eyewitnesses and other evidence on record as against Ex.P19 and ocular evidence relating to that.
30. In the light of the aforesaid discussions, there are no grounds to interfere with the order of conviction CRL.A.No.3548/2013 25 and sentence passed against appellant Nos.1 to 4 and only the judgment and order with regard to appellant Nos.5 to 8 needs to be set aside. Hence the following:
ORDER
(i) The appeal is partly allowed.
(ii) The impugned judgment and order of conviction and sentence passed against appellant Nos.5 to 8/accused Nos.6 to 9 is hereby set aside. They are acquitted of all the charges brought against them.
(iii) The order of conviction and sentence passed against appellant Nos.1 to 4/accused Nos.2 to 5 for the offences punishable under Sections 143, 147, 148, 324 read with Section 149 of IPC and Section 302 read with Section 149 of IPC is hereby confirmed.
(iv) The order of the trial Court with regard to payment of compensation and disposal of the property is maintained.
(v) Appellant Nos.1 to 4/accused Nos.2 to 5 shall surrender before the trial Court forthwith. CRL.A.No.3548/2013 26
(vi) The trial Court shall issue the modified conviction warrant accordingly.
(vii) Registry shall transmit the records and communicate the order to the trial Court forthwith.
Sd/-
JUDGE Sd/-
JUDGE AKC/KSR