Karnataka High Court
State Through Tavaragera Police ... vs Mudiyappa S/O. Durugappa Narinala on 14 December, 2016
Bench: Ravi Malimath, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 14th DAY OF DECEMBER 2016
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO.2630 OF 2012
BETWEEN
STATE THROUGH
TAVARAGERA POLICE STATION,
REPTD. ADDL. STATE PUBLIC PROSECTOR.
... APPELLANT
(By Sri V.M. BANAKAR, ADDL. SPP)
AND
1. MUDIYAPPA
S/O. DURUGAPPA NARINALA
AGE: 52 YEARS,
2. DURGAPPA
S/O. MUDIYAPPA NARINAL
OCC: GOUNDI WORK,
3. CHANAPPA S/O. MUDIYAPPA NARINALA
AGE: 21 YEARS, OCC: GOUNDI WORK,
R/O. BASAVANNA CAMP, TAVARAGERA.
... RESPONDENTS
(By Sri B. SHARANABASAWA, ADV.)
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THIS CRIMINAL APPEAL IS FILED UDER SECTION 378(1)
AND (3) OF THE CODE OF CRIMINAL PROCEDURE SEEKING TO
GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 15.10.2011 PASSED BY THE FAST
TRACK COURT-II, KOPPAL IN S.C.NO.43 OF 2011 AND SET ASIDE
THE ORDER OF ACQUITTAL PASSED BY THE FAST TRACK
COURT-II, KOPPAL, DATED 15.10.2011 BY ALLOWING THIS
APPEAL AND CONSEQUENTLY CONVICT THE ACCUSED FOR
THE OFFENCE WHICH THEY HAVE BEEN CHARGED FOR IN
THE INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT
The case of the prosecution is that all the 3 accused were residing near the house of the complainant. Accused No.1 is the father and accused 2 and 3 are his sons. Bathroom water of the accused leads in front of the house of the complainant. In this regard, the complainant informed them to make way for the bathroom water so that it does not stop in front of his house. The complainant and the accused quarreled with one another. On 26.09.2010 at about 8.30 p.m. when the complainant along with his sons Chandrappa, Chantrappa and daugher-in-law were in front of their house, at that time, accused No.1 came and quarreled with the complainant. Accused No.1 assaulted the complainant with club on the head and left hand. Accused Nos.2 3 and 3, who are the sons of the accused No.1, have also used filthy language. Accused No.2 assaulted on the head of Chandrappa 2 to 3 times with a chaffer. Accused No.3 assaulted Chantrappa with club on his head and right shoulder. In the meanwhile, the daughter-in-law came there to pacify them. She was also assaulted on her left hand and shoulder. The complainant sustained bleeding injuries to his hand and head. Chandrappa and Chantrappa have also sustained head injuries. Laxmi was also injured. Thereafter, one local villager came there and pacified the incident. They took all the injured to the hospital. Based on these facts, a case was registered for the offence punishable under Sections 324 and 307 and 504 read with Section 34 of the Indian Penal Code. Investigation was taken up. The charge sheet was filed. The accused pleaded not guilty.
2. In order to prove its case, the prosecution in all examined 13 witnesses and marked 14 exhibits along with 7 material objects. The defence marked Exs.D1 to D-3 namely relevant portion of statement of PW-4. The trial Court acquitted all the accused.
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3. Aggrieved by the same, the State has filed this appeal.
4. Sri Banakar, learned Additional State Public Prosecutor for the State submitted that the trial Court committed an error in acquitting the accused. That there is substantial material led-in by the prosecution to prove its case. That only because the Doctor who had conducted the surgery on PW-12 was not examined, the Court below committed an error in acquitting the accused. The material on record would clearly indicate that there are serious injuries which are sustained by PWs.1, 4, 5 and 12. That PW-12 had sustained grievous injuries. Hence, he submitted that the appeal be allowed by convicting the accused.
5. On the other hand, Sri Sharanabasawa, learned counsel for the respondents-accused defends the same. He submits that in the absence of any valid evidence, the Sessions Court has rightly acquitted them. That there is no evidence to show that PW-12 was attacked with grievous injuries. In the absence of the same, acquittal is justified.
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6. Heard learned counsel and examined the records.
7. PWs.1, 4, 5 and 12 are the injured eyewitnesses. Remaining are supporting witnesses. PW.8 is the medical officer who has issued wound certificate of the injured. PW-13 is the investigating officer who has filed the charge sheet. PWs.6, 7 and 10 are independent witnesses who were present at the time of the incident. They have turned hostile. PW-10 is another eyewitness. She also has turned hostile. PW-9 is a scribe to the complaint. He has supported the case of the prosecution. PW-2 is a witness to Ex.P-3 panchanama. PW-1 is the complainant and an injured eyewitness. He has narrated the manner in which the incident took place. House of the accused and the house of the complainant are situated side by side. There was objection with regard to bathroom water leading in front of the house of the complainant. In this regard, the accused used to quarrel with the complainant. On 26.09.2010 at about 8.30 p.m. the accused came to his house and picked up a quarrel by that time his two sons and daugher-in-law were in the house. Accused No.3 assaulted him on his forehead and left hand and thereafter, he assaulted CW-14 6 on his head and on both the shoulders. In the meantime, another son of the complainant came out of the house and the accused assaulted him with chaffer and clubs on his head and both shoulders. His daughter-in-law-Laxmi was also assaulted on her left hand and head. All of them have sustained severe injuries. He has identified the clothes and the chaffer used for the assault. He has also identified blood stained clothes. Nothing worthwhile has been elicited in the cross-examination to disbelieve the same. He has narrated the said facts. As per the complaint, accused No.1 assaulted complainant on his head and left hand. Accused No.3 assaulted his son with chaffer. PW-4 is the other son of PW-1. He is another injured eyewitness. He has by and large narrated the statement made by PW-1. PW-5- is the daughter-in- law of PW-1 and an injured eyewitness. PW-12 is another injured eyewitnesses. He has narrated that accused No.1 assaulted his father with club and thereafter he came there. Accused No.2 was holding the chaffer. He assaulted him on his ear, head and stomach. There was an operation on his stomach. He was admitted to Bellary hospital. The evidence and material would 7 clearly indicate that the injured eyewitnesses-PWs.1, 4, 5 and 12 have supported the case of the prosecution. The learned Sessions Judge disbelieved the case of the prosecution merely because the Doctor who conducted the operation on PW-12 was not examined. But for this reason, the entire case of the prosecution was disbelieved. There were also certain discrepancies between the wound certificate and the evidence of the medical officer who treated the injured.
8. We have considered the evidence. Even though there are minor discrepancies, the same cannot be said to be to such an extent that the entire case of the prosecution is faulty and not liable to be accepted. Admittedly, there was enmity between the accused and the complainant. That there were family bickering between the family of the accused and the complainant for quite some time. There was motive to commit the offence. Injured are the eyewitnesses. Nothing worthwhile has been elicited in their cross-examination to disbelieve them. The injuries sustained by PWs.1, 4 and 5 are simple in nature but the injuries sustained by PW-12 are grievous in nature in terms of the would 8 certificates-Ex.P-6, 8, 9 and 10 respectively. Hence, we have no hesitation to hold that the Sessions court committed an error in acquitting the accused. Based on the evidence and material on record, we are of the view that the prosecution has established its case for the offence punishable under Section 324 of the Indian Penal Code. We are fortified by this view in view of the recoveries made with regard to the weapons used for the offence. M.Os.1 and 2 are the clubs. M.O.3 is an axe and M.Os.4, 5 and 6 are the clothes of the injured PWs.1 and 12. These material would indicate that there is no ground to hold that the prosecution has established its case so far as Section 307 is concerned. There was no intent to commit the murder by any of the accused. Therefore, we have no hesitation to hold that there is substantial material so far as the offence under Section 324 of the Indian Penal Code is concerned. The Sessions Court, therefore, misdirected itself by misreading the evidence and material on record in acquitting all the accused. 9
We are aware of the principles governing the consideration of the appeal against an order of acquittal. However, on considering the material on record, we have absolutely no hesitation to hold that there was absolute perversity in the finding of the trial Court in acquitting the accused. The prosecution has established its case beyond all reasonable doubt. In view of the perversity in appreciation of the evidence by the trial Court, the order of the trial Court requires to be reversed.
For the aforesaid reasons, the appeal is allowed. The judgment of conviction dated 15.10.2011 passed by the Fast Track Court-II, Koppal, in Sessions Case No.43 of 2011 is set aside. Accused 1 to 3 are convicted for the offence punishable under Section 324 read with Section 34 of the Indian Penal Code.
So far as sentence is concerned, we have heard learned counsels.
Counsel for the accused contends that the accused are labourers. That the incident took place at the heat of the moment and there was no intention to commit murder.
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On the other hand learned Additional State Public Prosecutor contends that axe and clubs have been used for the commission of the offence. Hence, no sympathy should be shown.
It is also brought to our notice that the accused have been in custody for a period of 23 days. Hence, we are of the view that further custody of the accused would be unjustified. Since the accused have already undergone custody of 23 days, we deem it just and necessary to impose the sentence of imprisonment for the period already undergone by the accused. However, imposition of fine would meet the ends of justice. Accused No.2 has caused serious injuries to PW-12. Therefore, it is appropriate that he be directed to pay a sum of Rs.20,000/- as fine payable to PW-12. Accused Nos.1 and 3 have also inflicted injuries on PWs.1, 4 and 5. Therefore, accused Nos.1 and 3 each shall pay a sum of Rs.7,500/- as fine, out of which, Rs.5,000/- each shall be paid to PWs.1, 4 and 5. The fine amount shall be deposited before the trial Court within a period of four weeks from the date 11 of receipt of a copy of this order. On such deposit, the trial court shall disburse the amount as aforesaid.
The appeal is accordingly disposed off.
Sd/-
JUDGE Sd/-
JUDGE kmv