State Of Karnataka By Akkur Police vs Putta Sidda S/O Nyatappa on 16 March, 2009

[Cites 7, Cited by 0]

Karnataka High Court

State Of Karnataka By Akkur Police vs Putta Sidda S/O Nyatappa on 16 March, 2009

Bench: Manjula Chellur

' --7Ma11gadal1aili village

IN THE l*llGl*I COURT OF KARNATAKA AT B/-XNGALUR E
{)A'il"I':'E) THIS THE igfkgpay of? i""\Rf9\('. H , glooq

I'RfESEN"I'  .
THE I~~IC)N'BLE MR-S.JUS'i"ICE MANJULA CH:«:L.LjURf"~«.V"'--._
AND  4  ;. is 
"WE HC)N'.8LE MR..iUs'r1CE A.S.1'ACI-ii-IA.¢PUm3j~   "

CRIMINAL AFPEAL N().'I'254 01% i.i2iii)Q'i    
BETWEEN: i  ii 1 ii i 

State of Karnataka
By Akkur Police   "  ig
Chennapatna Taluk  .  _   ""-[\§i);)€iial1i

{By Sri N.Rud1'a1m3n.i;::\gi(i--i_. §;"i':'f3.Filbiié'P1"OS€CE}IOl')

AND:   V

Son of Ny';{ta.1.i]i5a'i«.._ b   
51 yea1's.V   3 V
az1gaiia!iie}__} li_&v:i.[IVia gg ' ' 
CT!1en'na}:at11a' '.i"aA}11tl<,    --
Bai';gaioi~e }'{u__ra!~..VI)isit1'ig"t" 2 

, 23.. Rajah'  -
g ' 5:,SQi1' of PuttziS*idd_a___¢ .
A 'V  3i7yeai':T:.«
  i\/iangatialialli viilage
 CE1é'n.t1iapgiti1Va:~Taluk
 iBa11igailij<}1'éi1'Rural District

2 3.§§e1i1gallaial1 (E23,: Clietigallaiah
.A  Son of Dasaiah
"256 years

Chen11apat11a Taluk
Bangaiore Rurai [)istrict

4. Cilmwcialmna
Wife of Einune Ciiriyappa

 



4! years

Mangadal1alli village
Chennapaina Taluk
Bangalore Rural Districi

5. Kerrrparnma

Wife of late Nathaiah
74 years

Mangadahalii viliage
Chennapatna Taluk
Bangalore Rural District

6. .iaya1nma

Wife of Kongallaiah

51 years

MangadalralliVillagéy «
Chermapatrra Taluk   _   _
Bangalore Rural Distr*ict _  '

7. Sl1ivai*i1iga1_ri111a    
Wife Qf'PL'LI3ﬁ1'§1§iaiﬂh    v "

44 years .;:  ~  " . :
Ma11gad"al1_a'ili'1--1<gjlylagC"  A'
€Tl1er1r1apa1aa Ta.lu§s;_ "  .

Ba11g'€--1l'ore Ru.'i'a1r Disir--;L?1"".. ' ~

8.  .V}ayaVrr1r1r.VaA. "

, 'Sm: 0f'Ka.rig0w"da 

4,54 years

.V  M"arigaA(¥~al1alIi village
   C'-l1Vem1'a«pat:1_a Taluk
 &Bar1:'ga E0116: -.R1u1'al E.)i strict'

A  9. ,"JV£an1.§~a.rai1

W62} ofMaraial1
46--years

1 *~,Manga<Ial1alli village
--7Cl'1e11r1apat.11a 'i.'alui<

Bangalore Rural District' --Resp011dents

(By Sri Hasmatlr Pasha. A.dv.f0r R1 to R7; Sri M. Parthar

Adv. for R--8, Sri (EH.I~~farmr1'1antharaya, Adxnfor R49)

 



This Criminal Appeal is ﬁled under Section 378 (l) and (3) of
the Code of Criminal Procedure. seeking to set aside the judgment
and order of acquittal dated l.3.2()()U passed by the learned I
Additional District and Sessions Judge. Bangalore Rui-alp.-Disti'ict,
Bangalore in S.C.i\¥o.l05 of I994 and S.C.No.l33 of 19.93 and to
convict and sentence the respondents accused for the ()l'fCvllGé:?,.tV'.ltl'l

which they had been charged. u .

This Criminal Appeal coming on for liearir'igv--an'c!. liaviri--g {recites . reserved for judgment, PACTIll-lAi'Lfi{'E,"'.Ldel.iAverer_llllhisp the following: .

JUI)'(§lVlI£N'l"~._ .._.......a..............................

Tlie State has filed his appeal=e_]'.'alllei1ging tlie"acqui.ttal of the respondents herein for the chalrgeuiidet' 43, 144, I47, I48, 341, 324, 3t)7_aiid;3_'d2 read yviiii S.ecti'onVV149§'lPC on atrial held by the Sessioiis l"\ii_ral D.istr.ict, Bangalore.

2. the prosecution version unfolded duringtrial as 'L'.nd'c-rjn H _ _CW--l*I-~lombalaia.li,Tesideiit of Mangadahalli, was residing wi_tii«:l'iis__ci1ildrenand.._h_i_s.daughter, was given in marriage to a person . 'of_,Neelasai1sjra..Village. His elder son PW--7 Kumar was also married and liad.:la«t..cliil('i'.._.l~lis last' son the deceased was aged about 25 years at .t__he tii"i1eloi'5_.tli:e incident in question. Since 6 to 7 years prior to the iiicidentcglie was residing with accused. No.3 and was doing Coolie v,:o.r_k in" the house of the said accused. The deceased Nagaraj r|'et~'e.l*opecl love affair with Ganga, da.ughter of accused No.3 (M, they decided to marry each other. They informed this fact to the complainant l"l0l11l7alEll£1l1. and when he requested the accused No.3 to offer his daughter Ganga ii: marriage to the deceased, the ae_cL1sed had refused to offer; and. in this context, the deceased el(iped"--.wi--t]1 Ganga the daughter of accused No.3 and went to lvI§;fsL=)1'e.ahdl"tl':ey:l ' underwent registered marriage. in this ceittext.' deceased and the accused were strainezlf deceased he was stayii-1% ln anal» 'lll54l'é:§;f{El'Elvll\lW'€1l:l to l' Neelasandra and there t11eVy--- »tfe1'e xlxiitlttlie eldest .(lélugl1tei'of the cmnplainant. The w'i.felolfl__tl1eltleceased'l~lv;_esvl"pregnant and later gave birth to :a.--f%ei'gaale daughter of the complainant 1t:ai:'ttai11 the deceased and his wife stay in their own village. On 10.1l.l993l'a.l'_yabout 3llp:i1i.til:tllte deceased Nagaraj. his wife Ganga and ~E'.~i.s cllilrl came their village and on the date ofthe incident, as the' <t.ecea_s'eJ,1'Na'gai*2gj had left his clothes at Neelasandra village. he left "the lltiusje about 3 p.m., and in the evening. when the coinplia.ii'tlat1.t Vile. father of the deceased Nagaraj had gone to milk l.:"»{jaji-y..'3t about 6 p.m._ he saw the accused i.e. Father inwlaw and inother in-law of the deceased and their relatives together forining an unlawful assembly and assaulting l'W--2 Jawaraiah, the younger brother of the complainant. At that time they also saw the deceased s/\ Nagaraj coming towards their colony and chased him; and accused No.1 Puttasidda assaulted the deceased with the club on the chest and abdomen, whereas accused No.2 assaulted the (lece4ase<il£:w_ith Bettakudlu on the left shoulder and accused accusedto ﬁ.1_1isl.1 him. off and not to Eeave liim;

No.4 assaulted the deceased with Cl10(}._ri and accieset-l. No.(iil<icke;le the deceased with the legs and l=»'ea't--.._hin1 with the iia1ids;..._Acc§use(l , L No.3 also assaulted the deceased wit'l=!._tl:--e_ ciuE)"o--n_tl1e legs of the deceased. When he came l"i'€',8'i' _tl1'e_ c1e{ceasedf<lAuiririg the assault, PW- 8 l"'arvathamn1a wife of l""W-2 aind a\§a»1fasaiiv1i1ia xaitcl others advised the complaii1a.nt'--..i1o15:to--_V_iri~tei"*-t-jeae as.__«tiie- .accused may assault him as well and _b_1foug~l1Vt"'i".ilrato the" h_ous'e.o_fKtii1taial1 and asked him to sit in a room. __ The eo--i1_i_{7laihaiit~also saw the assault by the accused through the Wi1l(i(1\«t/i'z'..lj1'(wl_ tVeaiii'itg*"()f his clothes; and as they found him dead, dragged -l1is..dea~d hody towards the house of the C0l11.p_i.ﬁil13l.1.t ﬂ1](i.i'['i!fC'C()l'I'l[3i8lnﬂ]'lt having scared left the room and iiicaaie village in the night and at about 8.30 pm. he <i_t.io'i;?r_1p.iai11t to PW-- l 2 the Police Sul)~lnspector of Akkur Police St'atio_1i,j'..--v}l1o then recorded the statement at ﬁxl'1ihit P» 13 and register~ed't;he same in Crime No.72 of I993 and sent the complaint '*i.d'an(i also the FIR at Exltibit £114 to the Magistrate and tltereatter iatiiiediately went to the spot. lt is thereafter, l'W--l2 €lltrlt§{@ "'».rc.S1as;ié'E: anal :I._I'1sta.ine(lsoil'at Mos I6 and 17. Banian of' 1>w..2 at M().l8 prot!1.i.ccd by PW--l()._ which was blood stained. He also Sltlie clubs, betta~kodlu and C hoori from the spot r'§,'3ai'Cl1 f'(;z» the accused; and by the time he returned to the police i"iSIi!.{l'()ll;/ he found accused No.5 liaving been apprehended and had i stistained injuries to her right lingers. lle verified the NCR regigti (2 investigation to PW--l45 Police Sub--lnspector._ who sent I'W--2 to the hospital for the purpose of treatinent and asked l'W--l3 to record the statement of l.'W--2. He went to the spot and deputed the staff for watch on the (lead body. On l2.l{}.l993 in the morning he"--liel(l l\/Eahazar at Exhibit l'--l on the dead body in presence of.

another; and, at that time he seized clothes of the K to 13, MO--l4 blood stained soil and place where the dead body was found. .l-le«.iA'eico.r(letl .s.tvatei1"lenti witnesses and after the inquest at l'--fl 'body for postmortem CXal11lll£*lti('ill';~~" a.ndi3 showed the places of assault in betweenﬂtlie place where the first assault toolg" plfaee and seized tl1eVib'l--'oov2l....stained and unstained soil at lVfOs._l-- a.n(i'--"2_"l"lie 'c«o_inplaiiia11t also showed the place where PW--2 was as'sat£lte;l.,"ahdin.__tl1e presence of attesting witnesses he held Maliazat.oat'vIZ€:<lii_bit,l':l..7; and at that time, he seized blood aridaiso the cycle under Maliazar at Exliibit P--l 1. He made and fouucl that she has tiled a compiairit in Crime No.158 of 1993 and collected copies tliereofat iixliibils P-20 and P-21. Or: 13.10.1993 he ﬁ1"l'('3S1€(1 the accused Nos.3, 4. after goirig to the hospital at Cliaiiiiapatna seized . stained shirt. towel and baniau of i-'W--2 huiigier Ma_11ai7.ar

2. He requested to draw a sketch of tlteisceite' to coiifirm about the supply o'i'1_e'1'ecti'icit:y to the 2 3' relevant time from the co_11ceme(1__aut1ioi'it,ies aii1(1:.sei1t_t11e seized articles to forensic ex[)erts';--.1:ii11eis.¢§}.ii::ei1"'--1i'}ft1'ii1:.itV1'--4 I-'ostmortem Report, Exhibit .P-- 1:{3' the it:ii_'§11'.i'i*'_x./e and §3Xhilm._q PM 25 and P--27___ the ._aridj aifi=estec1ii11t11.e 9* accused. He secui"ed,111Exi11i'15iti,5'V_i'-- 1!1eWs_ketci1.11aiic1 fixliibit 1'--7 the Injury Certiﬁcate of'a.ccu's,eL1'1Si'o_.i5'a_i:iii'<ai'iot.1ie1' FSL Report at Exhibit P»3(.1. He also secui'ed.,1t1'ie.7'mai=ria;§e certificate at Exhibit P-32 of the 1"'c1ecease<t¥anc1'1'after c.o1iii;iiiletio11 of investigation filed a charge sheet A ~.aga._ii1sf' th:e~«ac'c£1s'ec1i~~Nos.1 to 9.

3. 1 Duringiitrial, prosecution has e'xa.niined PWs.1 to 14 and in iiju.t1ieir-~evideiice got mar1<ed documents at ifixliibits P--1 to P-33 and ' 1VI,Os.1 to 19. Statements of accused were recorded under Section 1 313 Cr.P.C'. They have taken the defe11<':e of total denial. Tiiey also EL examined I)Ws.l and 2 and got marked the documents at t,€xl1ihits D-l to D-l 7.

4. The trial court after agvpreciation of the material on 7r_e(,ord acquitted the accused for at] the charges framed a§'g"ai'itst'*-.t_l:1e:t1.'> Aggrieved by the acquittat this appeal has been~p~ret'et'reti~::hyAthe State.

5. We have heard the teamed Puhlic«. .Prostet:uto#' antli also the learned counsel for the rcspo1'identsi'ac'cus'ed.

6. The points tl'.-at arise for -oar' co:1s'icderaVLion' are:

(1) W1ae1f":»c1'511%+<.IeceIas€dNasafais die-,d"é homicidal (leath?

Whetihe7r.Vi--t..isV}')rt'm:ei:l»v..t_hat:fthe accused being the members an i1r1l_aV%;fu|'Via-ssenihly and with a common object, _ assauited.Nvagaeaji'wiitit the ciuhs, handte of spade, Betta iKLlVf1llI,h uC'!1£1£}t_§tdvetc. and caused the death of Nagaraj. committed an offence punisliabte under Section " s.ii'3.n2 t'ead.:~xVitt1 Section. 149 we?

(_'3}.V.W'hett1e1' it is moved that the accused Nos! and 3 ii -...assauEted I'W--2 Jawaraiah with the clubs and spade and caused injuries, thereby committed an offence punishable under Section 324 read with Section 34 IPC?

(-4) Whether it is proved that the accused have committed any other of'f.'et1ces'? K in the police custody on the same day at about 8.30 p.111. "the ing learned counsel submits that the triai court was justified in gr acqtiittal. He fu.rt'liei' subunits that even if the secoiitiVuVi.ew._V»s possible, the View accepted by the trial court caitii<>t_.be"ti*is_tt:.1_'liet-is _ On these grounds, and the decisions referred t'(.'i"'[3);'~~iji~!I1'L"'E€21tI1t3gi' counsel submits. that the State has iiot iiiatle u'("3U...t' -ah-,}"g1[}e.g11:.t;:' warranting interference. it it i i 3

9. At the first iiistaiiee. to f"iVAIf_().\i:?iV€V:',A'"i.i'l6".,_h()l]iit:i'i:i2l:1..'Atlevaith of the deceased Nageraj, prosectnticnreiiesV*:a.ipo4i'i'~tiiie:Ve=;zitleiice of PW-4, a witness for iiit1ti«_;fs't,__ at :'irEH}t(iI'1'it)::;it held by the Investigating, «Ot*fi_ce}f_,. ext" !.he__ ii:.o(ly._" t't["'!l1€. deceased. PW-4 has s1ippoi'te(i the iA\"'€'.l"SVi()l1'V'3{)f' thepicisecutitiii and states that the inquest on the bod3{ of the deeeaseti held as per exhibit P--3. Tliere is no se1'ioi!.s »ei'0ss--exainina'tioti- of I'W--4 and PW--i4 the Investigating }t*',)"01(iI1gv"'["("i'i}16 contents of the report at Iiixliilait P-35, '~tl1ei.'e is a.i1fipVle ijjat.eIial to pmve that the dead body of the deceased was"««fa1le_n' 'atvthe spot on the road in the village Mangadahalli with h Viimaiiy injuriies on the head, legs, etc. A1").i' it So far as details ot' injuries are coiicerned, we think it is it Wrelevaiit to look into the evidence of PW-5 the Medical Ofﬁcer of the General 1--i.ospit'ai. (.'liai'niapatna, who held autopsy on the dead :>£\ E3 also his evidence that the WE'1l]')()l1S M(')s.o to 9 i.e. clubs and hem- kodlu and M09 Choori would cause such injuries if a person is assaulted indiseriininately. Tliese weapons were produced before PW~5 and after verification he has given his report at liixliilﬁt-.»l'-6. lie states that the fracture of rigltt parietal hone and tibiaét:--?ef"--fat*al and leads t.o death, and the injuries would cause loss_.c§iFit)l«oti-d_aattl consequent death. As could be seen ti'orn the cross_-e"x~a_in'in.a~tio11 of _« PW-5, so far as the injuries on the decease'(i._« there seeiiistt) besnoﬁ serious dispute and nothing is elicited tin tlie 'cross-e§{ati'ii:iar»i'o*nlite:

discard the evidence of PW--5. "iT'l.,l_@ tioctor has tleiitii;ed..._Vtliat3 the lacerated injuries could be caused oulyuhy a sliarp'ierlgetlisuhstance. He admits that the margins of lace-rated".ii1:j'uries werc--..ii'ttegtilar and that such iitit:i'iVest\.,1c--;t.i_i"also-._lie--.__c::u-sed by a blunt substance. tie admits tl1at._in caseiaa isliarp "c«.1__tttiiig weapon is used to cause i.njLn'y. there 'may he ii'nc_iise:l. wtiuiitlsz and in case if a weapon is ;)ierced it ~..,w'()tl'lLliCétt1'5i€"S1313 iiijtiiijﬂii He admits in the cross examination that °qM(.)--9' 'sharp edged weapon. whereas l\/10-8 is a sharp vi/ea;5'oti. mi1('l~iitljiat'§\/E0-8 would cause cut injury in the form of incised wound coupled with contusion and abrasion. lt is relevant to note i.fr.tliat*-t_l1e opinion of the doctor is subject to circumstances in which inciidieiht might have occurred. hi case if a sharp edged wezmon is to _,,use(l with the blunt 'end on the head, the weapon may cause lacerﬂ also the FIR at Exhibit P-14, and it was received by the Magistrate at 3.25 23.111. ie. in the night of'tl1e incident. thereby the inference Could be drawn that inunediately alter the incident of assault in between 6 and 6.30 pm. CW~l l'-'loruhalaiala went to the police statioVri'al..Vyh.icl'1 was at a distance of4 kilometers from the spot of tl'1e_;i'iici:leat:

submitted his complaint at lixliihit l'~l3. He is at1_e3=c.--.wfi~fVness to the incident. lie states the relationship l)Eli_"vV6€y!!-,lAll'€ lcleceasecl'alai;I_ tine accused and it is relevant to note.tha__t_ acct1se_(l"No.3 e.i's"'the,4fatlie:- in; law of the deceased and father ol'iiGa11gga wife' of' the deceased; whereas accused No.6 is the _\£m'e of agccused Accused No.1 is also closely reiatedto accuse:/cl.Nc).3._wl1ei"é.gsA"accused No.2 is the son of acct1secl_N_o.1;i:_ i'A_ii.Ihe acctised are' closely related. He states that it isl7i)ec'ause --aj_.'laii9 of the deceased Nagaraj with. the daughter ofllaea:'Ctrsedlli'~lo.;} (iiaagai that the dispute arose between the ~ , ' pai-tvit:s, Deceased N-agarjai, though belong to the same community of the*a.ccu.sed, was __a poor man and was working in the house of acctisetl N('i~i3~~ lcoolie. So. while he was worl<ii'1g there he develop.edA.loye and affection for Ganga and though an effort was C*ii'iAa(le«--.t<) persuade accused No.3 and his family members to offer ' Ganga in mar1'ia.ge, as they did not agree, the deceased eloped with Ganga to Mysore and uiiderwent a registered inarriage. It is because of this reason that the relationship between the deceased and the A4.

A_ ab(lt.'a'lifi'£:.€'.l}v.,iWl¥Cl'6EiSi§i'CCL'I'S'€(,i No.2 assaufted him with Betta Kudlu on V the_lef'£ sil'.oLtl_der._ and accused No.5 instigated the other accused to ._tihisli'hi_n:._ot'F' =.':]_11i{l. that she would look after the expenses and i"WAltl't ltaiuls; whereas accused No.3 assaulted the deceased with a "iic}a.iti) oh the legs. It is at this time when C'\«V~1 It-loh'tbala.iah cried it:

accused were strained and C'\'V--t in his corhplaint refers to all these facts and states that thereafter the accused were spreading a rumour in the village that the deceased will he done to death in case if he returns to the village. So, on the date of the incident. the tlejce'-aTsc(l Nagaraj came to the village at ahout 6 ;).nt.

Neelasandra Village and when (['W--I had gone sefl the milk. at about 6 pm. and wl'ter;¥ihe Cl1ah.negowda PW--3, he l'oLmd: his ti'>rother .law"a;:.giiVial1i F':W'--<2i surrounded by the accused Nost t(.ii'i'5..V¢iaia';r,'i otl1ei's.,ahd*if0tri1d that the accused No.3 was l1of(lir1gicl'ub. willetfeas.ac.cuaed No.2 was holding Betta Kudltl and accused NVos.3'<lweI=eil1o_id._irug C hoories, and other accused :_l1aV"gog stii-i*1'o§m't'letl"'PW¥2-..v.~*ere assaulting him ihdiscriIhiha_t:ely.' v--'At.r_tltat 't'i.1Vtie,.__lee saw Nagaraj, his son, who was coming towards the.'colori'y~._ahtlPthe accused surrounded him and the1"ea_i'ter aceuisedi No.5} assatllited him with the club on the chest and acctlsfcd 'No.4i.:ass1atIlte(1 on the head of the deceased with a Choori. He also s.t:ate::'"tl1at 6%" accused was kicl-ging with legs and beating

14. The "fact that there is material. about accused No.5 ltaving sustained injury at the hands of the deceased Nagaraj would also reveal that the relationship between the family membersieoftlte accused and the deceased were strained after the 1z1arf1'l'a'ge--«iA§&' of Ganga. In the circumstances, we are of tlte_--op'i.v11i::o:1 iitltat-Atlteié prosecution is able t.o prove the st1'ai1red relatieoztdsltiipi.heIiWee:1_ the deceased and the accused and tl1e~m(i,-.t:i\ve tor-the iticitt'eh§_:

l5. The prosecution .1§t1(lS '.V*L't'1'a"ct'tr.:tltei"-e_triclednce"o'fiv:f()t:r' eye witnesses amongst whom "tlte and PW--3 are the independent the brother of the deceased. the Milk Dairy in the village 1:ﬁi§A'e¢.§%V;t1e_ﬁ{~_lé'$155: on £1.10. t 993 at about 5 pm. he hart gone 'to_tl'.e' :.11iili:.«_{lairy to do the work as Secretary, and at that timelze saw 't_.E'1aé,l'1'or'rt Halagur colony the accused No.l ltoldhag the clue "io,ltis 'hand. accused No.2 ltoiding hetta~kudlu, accused. l~lAo.34A'lto1(li11g ltaridle of pick--axe. accused No.4 ltoiding A'-("ltoo1*i"accoi1'tgj'zt.tV1ie<l by accused No.5" to 7 were chasing the decfea_sed_vNagarai. and when they came in front of the Cooperative ._ i"Milk E)ai1:j,?_, accused No.2 kickecl on the legs of the deceased who '*«i:felli down and tltereafter accused Nos.l to 7 assaulted the deceased. He states that accused No.1 assaulted the deceased with the club on inconsistency so far as accused No.5 is concerned. It is in the context of this inconsistency, a doubt arises so far as involvement of accused No.5 in the assault.

17. Apart from this, it is relevant to note that i.n the evigle1yi_ce_¢titt.._is very much clear that accused No.5 had sustained i_r.*.--_i§__ti1*y"z:.i?:"l}.

I njury C'ertif'1cat'e at Exhibit 1%?' has heen .p,ro(|ucey:i," w'liir.t'_i3.woI.tI'd gov to show that she had sustained g1"ievous2iitjttryaml'n1i*tlte n"c--,;a:--..;1'.é1i;:_:

when she was examined, it is statcclnhefore ths: do.cto°r._l"Vt{:5«..Iha--i she r L was assaulted by the deceased a1aiy(l.._liad_ sustaiitedinjury? As the evidence of eye-witness inch:ding'tlieg-.injui'ed PW--2, does not reveal anything so far aS_l.l1jL__ll'y onwaeezésecll is c,on'ce1'ne(1, and it will have to he in '5u.;t'm{ti No.5 had sustained in_i:.1i'y earlier to the incide<nt.l _Jt is ht the prosecution that on the date of the iiicitlent aC.ctise(ll4li'xlo';Sasitl the deceased Nagaraj had alighted from {the bus in, the hush" stahtl at 6 pm. and there was quarrel v.a1no':1§st:y_t-liem \,vl1ei"ein*t*l1e accused No.5 had sustained injury. So, ftioitt-the._dloettme'a.t_s produced both by the prosecution and also the tiefei1_(:e ai'i1l§t_"t»!1_ef_acltbeing that accused No.5 had lodged a complaint with uregaixl to the assault on her by the deceased 'Nagara_i, it has to be ij~.,l1eltii---t_l1at accusetl No.5 had sustained injury prior to the incident of assault on the deceased Nfigtiaiﬂl 173' the accused. KL 24

18. So far as accused Nos.() and 7 are concerned, tltough PW-l states that accused No.7 was holding Choori in her hands, neither PW.2 nor i'W-3 and or I'W~«7 do not say anything as 1'€gat't.lS.(ll]€ weapon held by accused No.6, and more pai'tictil.ai*!.y,'.i_l' ftlle complaint at Exhihit P-l3 is looked into, it is tlte_.t-'_erisi--ohi Homhaiaiah that accused No.6 with her legs and was hearing him yjtltll lierhaittls. Vi:\4/el'Sli(jffi1.i.l1} the complaint at Exhibit P-I3 is iiiic'oi_i'sistei1t hwit'l'i_ﬂti.ie eiii<§it1ei'ice of PW-l who states that her hand, thereby in the absence of in.a.tei'i.al coi'ijob'o'i=ati'on_about the accused No.6 kicking tlfe '\Vll:_ll.lill€l:il lsegsioartieatiiig him with her hands or \;vl1eti;e';'.. slit}, wt2.sVa_rined-- with Choori and then caused assault, the Vev'icelei'ice_oﬁthel}';a:oscc'tit'ior1 is inconsistent. So far as the rest ofthe accusetl are ._cointcert.iiecl. there is nothing in the evidence as i'egard_s i»\x€g'1p0llS "held by them.

_il9. It'isi'zi.i.iwelE'established principle of law that when there is imolveitieittil-lit:of'?many accused in the crime and if there are (liscr"epaitciesv;'ii1(i inconsistencies in the evidence, it is the duty of v..V>il]t3v'{Z()lli"tl'l0 remove the grain frorn the chaff. If we liave to do this ie:§<le'r--ci.se, so far as accused Nosl to 4 is concerned.= there is * -coinsistent. cogent and acceptable material to show their involvement 25 in the assault on the deceased Nagaraj, and in so far as rest of the accused are c()11cei'iietlt there is inconsistent, conflicting statements and thereby some doubt arises with regard to their complic.it$'~-intlie crime. 80, the appreciation of evidence lead by thefjirtise_c-u_t_i't:;t23_ _ have to he looked into with the defence ex-jidence of't"iie--.aceuse(l;--A

20. it is the contention of the ieamed=_cotn=ise.liltor,tl'1e.aecused_that ii the origin and genesis of the ease has 'been stipijressvegl by the prosecution and that none of the'.p:'osecL1tion.Vrittiesses have explained the injuries on tlteeetfstiri o;jfv5'§'ii"accusegl and therefore it is contended that reli.ance cannot. libel plac_eid "o:1a'"ttie' evidence of the witnesses. 0_n..t--!1is 5-.__sp_ec~t or ting ii1_2.tte!i,iieariie(.l counsel has relied upon a reported in MR I998 SC 2554 (s'i'Afrt;or:._téii;,:as*:.ii}?iitN V. R/\.lE,NI)R/\ SINGEi)_ The perusal «ef the isaid decisieii reveals that there was inconsistency in iVi'i.l.1Ct§Vt(l£§!iiCffVt)f'€y'€ witnesses. No gun short injuries were found on i"tlie«.i'<|eceai$egli ads-.nosit'ively stated by the eye witne-sses and the itt§uri.es ::_::ii' the person of the accused were not explained. Eye ' V5.:itVi1esses~\évere not willing to give true version and were suppressing i t?.ie"rn:atei"ial facts. it is in this context that the lriorfhle Apex Court " "was of the opinion that the prosecution has suppressetl the material facts and has not explained the injuries on the accused and tlierefore examined by the prosecution regarding the complicity oftlie accused in the crime. Considering their €\="i(l€!1Ct3. we are of the opinion that the principles laid down in the decision do not apply to the facts on hand.

32. Lastly, learned counsel for the respondents 1'el'ie(l..ft;.p§'>ii' ta"

decision of the l---lon'ble Apex Court reported in Al?-...2ili€l{ii 2aré7"

(V.N.R_A"I'l~ll£E§H V. ST/\'l'I?, oi: K_lil2A_tsA)..aiitl i£itlS(i):i.o1'i'-lait'l€'Ci_isiit)t1 if of the Privy Council reported in AIR li9A3V{l"E'.(T.;2i2 SWARUP AND ()'l'E---tl;3RS V. i<.iNio~.i:iti.i)i3aorti;Atitre.'-aria. it has been held that in an €;tg.'«l.llI'Ei_f'..'éﬁlqlllllfll, paramount consideration of thencourt is-ttov.enstii'*e_t'E1at the ri'ii_scai'i'iage ofjustice is pi'ev;ente(|.i"fit; xzvitsi lieltllvy the Hon'ble Apex Court that ii1tei"fei'ei'ice Wiytli 'the' a}a;)eaily_iaga'iiist acquittal is permissible only wlien.;'tl--iere are ..coi1'ip"eIlii-lg and substantial reasons for doing so. ii"Furtl"ier, iiii' tli"e~_Pi"ivy Coiiiicil decision i'et'erred supra it is held that ,,.f1,:'§Et.i't}S'l tli.e'r--oii'tlei'-.oit' acquittal as a matter of fact the I---ligli Court has full"jpowei"toreview the evidence and reverse the acquittal._ but it _i'n.1ust act'*--in accordance with well l-otowii rules and principles. We i'l1,aVe"bor1ie in mind the principles laid down by the I---lon'ble Apex A V' ""C.'.ourt and also the Privy Council and then appreciated the evidence on record, and. as seen from tliejudginent of the trial court. the trial ti»/\ 4l

39. In the result, we E1|'1SWf;'l' Pointxs No.1 and 3 in the al'ﬁi'i11ative, Points 2 and 5 partly in the afﬁrmative and partly in the |1€gﬂElV"C_._ and Point No.4 in the l1€:'g'clll\-'€._ and giroceed to pass the folEm\~'i_i__1g:

ORDICR Appeal is allowed in part.. Setting aside l.lT'§:"Elf.§(.],'_i:lili'li§ll' 4' Accused N()S.l to 4 befiwe the trial couirt '("R'€S|'j)()l'iti€l1I'S;iA'l'i.l'(1' i:t:'«tl1ii's_V V appeal), they are held guilty of the (i't"l'e1ic.¢ fmitiéihalil9__iIi~:de:; ._ 304 Part I] read with Seestion li4'§l:iif_Mtl1e llaillall,Vl5€3{1ElVl"~£@fU(l€: and ii accused N0s.l and 3 are l;'~'€"-.S])()l1E-'»l..l.'"I'i'{3 liiiﬁ.O{f6l'lC€"L!l'1~('ié.]' Section 324 read with Section 34 ()l'ii1l]£i 'iIi(l~iai1 ;:ii'€l']:iE1i'i:i.C'i€3:(ilt3. The acquittal of iiii '. Sd/' _ _ Judge Sd/...

Iudge ' iwT0il€'&i".,{)il'§ll8 sentence.» MCJ 86 ASPJ:

19-034009 Cr1.A.N<};}2$_%§]";?UG§""e ORDER on SENTENCE H % & The learned counsel appearing fer _1 to 4 who were convicted for the oi°i'e.1_r,}ces u11'<:V:ier Pa;z1'H neadwith 149 of [PC and Responei'ee,§$ offences under Section 324 _1?¢'submits that having regard to the fact that the ineideﬁt -is years back and the respondents become olﬁ and cripple, the Probation of Oiffenders Act has to be have discusseii in our judgment, x7v1:i3~.&ci'O'1,1bz was responsibie to trigger the situation by of Accused No.1, apart from a$s;agu}ti1):fg";';11eriAfs&'EI;h a the hand. But the injury sustained inju1ies*vee1'e to the ﬁacture of parietal bone, which in resulfed Q12}- dural haemotoma at two piaces including fessse which uiﬁmatcly led to the death of the deceased. :1;1ed sustained ﬁacture of tibea. These two injuries, even if 'they were not fatal, the fact remains that they had the knowledge of their act. Under these circumstances, we are not inciined to give the beneﬁt of P.O. Act to the accused. We

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