Karnataka High Court
State By Bannur Police vs Sannappa on 4 September, 2019
Bench: Ravi Malimath, H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 4TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL APPEAL NO.796 OF 2013
C/W
CRIMINAL APPEAL NO.126 OF 2014
IN CRIMINAL APPEAL NO.796 OF 2013
BETWEEN:
STATE BY BANNUR POLICE. ... APPELLANT
(BY SRI. I.S. PRAMOD CHANDRA,STATE PUBLIC PROSECUTOR-II)
AND:
1. SANNAPPA
SON OF LATE NINGEGOWDA
AGED 57 YEARS
2. MAHESH
SON OF LATE NINGEGOWDA
AGED 32 YEARS
3. PRAKASH
SON OF LATE NINGEGOWDA
AGED 30 YEARS.
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4. KENCHEGOWDA
SON OF LATE NINGEGOWDA
AGED 47 YEARS
5. MAHADEVA
SON OF LATE NINGEGOWDA
AGED 62 YEARS
6. YOGISHA
SON OF MAHADEVA
AGED 27 YEARS
ALL ARE RESIDENTS OF ARAVATTIGE
KOPPALU VILLAGE
BANNUR HOBLI
T. NARASIPURA TALUK
MYSURU-571 124. ... RESPONDENTS
(BY SRI. V. PADMANABHA KEDILAYA, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF CRIMINAL PROCEDURE CODE PRAYING
TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT
AND ORDER OF ACQUITTAL DATED 28.02.2013 PASSED
BY THE FAST TRACK COURT-V, MYSURU IN SESSIONS
CASE NO.15 OF 2011 - ACQUITTING THE RESPONDENT/
ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTION 307 READ WITH SECTION 149 OF INDIAN PENAL
CODE.
IN CRIMINAL APPEAL NO.126 OF 2014
BETWEEN:
1. SANNAPPA
SON OF LATE NINGEGOWDA
AGED 58 YEARS
2. MAHESH
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SON OF LATE NINGEGOWDA
AGED 58 YEARS
3. PRAKASH
SON OF LATE NINGEGOWDA
AGED 33 YEARS.
4. KANCHEGOWDA
SON OF LATE NINGEGOWDA
AGED 63 YEARS
5. MAHADEVA
SON OF LATE NINGEGOWDA
AGED 63 YEARS
6. YOGISHA
SON OF MAHADEVA
AGED 28 YEARS
ALL ARE RESIDENTS OF ARAVATTIGE
KOPPALU VILLAGE
BANNUR HOBLI
T. NARASIPURA TALUK
MYSURU-571 124. ... APPELLANTS
(BY SRI. V. PADMANABHA KEDILAYA, ADVOCATE)
AND:
STATE BY POLICE STATION
BANNUR POLICE
MYSURU. ... RESPONDENT
(BY SRI. I.S. PRAMOD CHANDRA, STATE PUBLIC PROSECUTOR-II)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CRIMINAL PROCEDURE CODE PRAYING TO SET
ASIDE THE ORDER DATED 28.02.2013 PASSED BY THE
JUDGE, FAST TRACK COURT-V, MYSURU CONVITING THE
4
APPELLANTS/ACCUSED FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 143, 148, 341 AND 324 READ WITH
SECTION 149 OF INDIAN PENAL CODE AND ETC.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 19.08.2019 COMING ON
THIS DAY, H.P. SANDESH J., PRONOUNCED THE
FOLLOWING:-
JUDGMENT
These two appeals are filed by the State as well as the accused respectively questioning the acquittal of the accused for the offence punishable under Section 307 of Indian Penal Code and convicting the accused Nos.1 to 6 for the offences punishable under Sections 143, 148, 341, 324 read with Section 149 of Indian Penal Code.
2. Criminal Appeal No.796 of 2013 is filed by the State questioning the acquittal of the accused for the offences punishable under Sections 307 of Indian Penal Code and prayed this Court to convict and sentence the accused for the offence punishable under Section 307 read with Section 149 of Indian Penal Code.
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3. Criminal Appeal No.126 of 2014 is filed by the accused Nos.1 to 6 questioning the judgment of conviction and sentence passed against them for the offences punishable under Sections 143, 148, 341, 324 read with Section 149 of Indian Penal Code and prayed this Court to set aside the order of conviction and sentence.
4. The brief facts of the prosecution case are as under:
That on 30.10.2010, accused Nos.1 to 6 formed an unlawful assembly with deadly weapons and wrongfully restrained P.W.2 and abused in a filthy language and assaulted with an intention to take away the life of P.W.2. When P.W.1 went to rescue his father - P.W.2, he was also subjected to assault. As a result, both of them have sustained the injuries. Based on the statement of P.W.1, the police have registered the case. Thereafter, conducted the spot mahazar and also seized the weapons which were used for committing the offence. The Investigating Officer, after conducting the investigation, has filed a charge sheet 6 for the offences punishable under Sections 143, 144, 147, 148, 341, 504, 307, 324 read with Section 149 of Indian Penal Code. The accused persons were secured and they did not plead guilty and claimed for trial. The prosecution in order to prove the case, examined P.Ws.1 to 14 and got marked Exs.P.1 to 10. Exs.C.1 and 2 and also M.Os.1 to 9 are marked. The incriminating evidence was put to the accused persons under Section 313 of Cr.P.C and they totally denied the incriminating evidence. The defence did not lead any evidence but got confronted Ex.D.1. The Court below, on appreciating both oral and documentary evidence, convicted the accused for the offences punishable under Sections 143, 148, 341, 324 read with Section 149 of Indian Penal Code and acquitted for the offence punishable under Section 307 of Indian Penal Code.
5. Being aggrieved by the judgment and acquittal for the offence punishable under Section 307 of Indian Penal Code, the State in Criminal Appeal No.796/2013 7 contended that the Court below fails to take note of the fact that the injuries are noticed on the vital parts of the body of P.Ws.1 and 2 though inflicted the simple injuries, their object was to commit homicide of the witnesses. Hence, the acquittal of the charges under Section 307 of Indian Penal Code is not sustainable. The other contention that the motive, previous enmity and ill will were also proved by the prosecution. Despite that acquitting the accused, is illegal. The unlawful assembly, being armed with deadly weapon, assault and causing injuries, the motive, absconding of accused after the incident are all the detriment to the defence. In spite of that, acquittal is granted and the same is erroneous and it requires interference of this Court.
6. On the other hand, the accused in Criminal Appeal No.126/2014 contended that the Court below fails to take note of the fact that there is no corroboration about the place off incident and about production of material objects and there is no convincing evidence of 8 how Station House Officer got information about the offence. The witness Gowramma was not a eye witness and there were hostile witnesses. There was no convincing evidence by the injured P.Ws.1 and 2 or in the evidence of P.W.9 Gowramma. The judgments relied upon by the trial Judge are not applicable to the case of the accused. The use of word stick instead of dhonne is a very serious discrepancy and the same cannot be patched by the learned Judge as found in page No.29. The evidence of P.W.2 does not show falling of his one tooth in the incident as found in the evidence and his certificate. This shows very clearly how P.W.2 gave different stand in his statement before the Court. The use of Axe by accused is not spoken by P.Ws.1 and 2 or 8. There was no occasion to convict the accused for the charges leveled against them. Hence, it requires interference of this Court.
7. The learned counsel appearing for the State in his argument would contend that the Court below in spite of convicting the accused persons for the other offences, 9 failed to take note of the fact that forming an unlawful assembly armed with deadly weapons inflicted the injuries with an intention to take away the life. Merely because the injuries are simple in nature, the trial Court ought not to have acquitted the accused for the offences punishable under Section 307 of Indian Penal Code. The Court below has come to a conclusion that an attempt is made to press the neck of P.W.2 and in spite of forming of the said opinion, erroneously acquitted the accused persons for the offence punishable under Section 307 of Indian Penal Code. Hence, prayed this Court to convict the accused persons for the offence punishable under Section 307 off Indian Penal Code.
8. The learned counsel appearing for accused in Criminal Appeal No.126/2014, he vehemently contended that there is no any corroboration by the evidence of P.Ws.1, 2 and 9 with regard to the incident. There are material contradictions in the evidence of prosecution witnesses. The learned counsel would contend that 10 weapons which were seized were not sent to the opinion of the Doctor and in the absence of the opinion of the Doctor, the trial Court ought not to have convicted the accused persons. In support of his argument, he relied upon the judgment in the case of STATE OF KARNATAKA V. ASHOK GANAPATHI JAGIRDAR AND OTHERS reported in 2019 (1) AKR 555. By relying upon this judgment, the learned counsel would contend that none of the injured disclosed the name of their assailants to the Doctor. Injuries of other witnesses found simple. Weapon seized by Investigating Officer not shown to Doctor for obtaining his opinion about possibility of injuries being caused by such weapon. The circumstance creates reasonable doubt in the prosecution case. This Court in the above judgment held that offence under Section 307 is not made out to convict the accused persons and convicted for the offences punishable under Sections 323 and 149 of Indian Penal Code. The learned counsel relying upon this judgment also would contend that in the case on hand also, the weapons seized were not sent to the Doctor for obtaining opinion. 11 `Hence, the case of the prosecution cannot be believed and prayed this Court to acquit all the accused persons.
9. Having heard the augments of learned counsel for appellant for State as well as accused persons, the questions arise before us for consideration are;
1. Whether the Court below has committed an error in convicting the accused persons for the offences punishable under Sections 143, 148, 341, 324 read with Section 149 of Indian Penal Code and it requires interference of this Court?
2. Whether the Court below has committed an error in acquitting the accused persons for the offence punishable under Section 307 read with Section 149 of Indian Penal Code and it requires interference of this Court?
Point No.1:-
10. Before considering the material on record, we would like to narrate in brief the case of the prosecution and the evidence let in before the trial Court. 12
11. The gist of the case of the prosecution that on 30.10.2010 at about 9.00 a.m., accused persons by forming an unlawful assembly came with deadly weapon with their hands and restrained P.W.2 and subjected him for assault with hands and sticks. When the P.W.1 witnessing the same, came to rescue his father. He was subjected to assault. As a result, both of them have sustained injuries. The accused persons have committed the offences in furtherance of common object to take away the life of P.W.2. Hence, they have committed the offences.
12. The prosecution relies upon the evidence of P.W.1 who is also an injured. In his evidence, he says that there was a sale transaction between the accused persons and one Puttamadu. An amount of Rs.1,000/- was paid as advance and the same was returned to accused No.1.
Hence, the accused persons were having ill-will against his father - P.W.2 that he did not take steps to complete the sale transaction. Accused No.1 was always abusing his 13 father. On the date of the incident also, accused No.1 had abused him. Hence, his father was telling that the said transaction was already closed and why he repeats again. On the date of the incident, when his father was coming from shop towards his house, the accused No.1 abused him and accused No.5 restrained his father. The accused Nos.2 and 3 assaulted with club. Accused No.4 assaulted his father with Axe on his head. As a result, his father fell down. Taking the advantage of the same, accused No.1 tried to take away the life of his father by pressing his neck with his hands and the same was witnessed by him and his maternal uncle and he went to rescue his father. Accused No.6 assaulted him with club on his head. Accused Nos.2 and 3 assaulted with club. As a result, he has sustained injuries to his left shoulder and legs. He further says that his maternal uncle and the residents of the same village i.e., Vishakanta and Shankara pacified the incident. Immediately, both of them were taken to hospital by calling an Ambulance to Government Hospital, Bannur. The Doctor advised to take his father to K.R 14 Hospital. Hence, his maternal aunt - Gowramma took him to K.R Hospital, Mysore. Police came and recorded the statement in terms of Ex.P.1. At the spot, police conducted the spot mahazar in terms of Ex.P.1 and seized the blood stained sand and blood unstained sand. He further says that his maternal uncle, who preserved the weapons, which were used for assault were produced before the police and the same was seized. He has signed the mahazar - Ex.P.1. He also identifies M.Os.1 to 7 before the Court. It is also his evidence that on 03.11.2010, he has produced the blood stained banyan of his father and the same was seized by drawing mahazar in terms of Ex.P.3. He attested the signature as Ex.P.3(a). He was subjected to cross-examination. In the cross- examination, he admits that the public use the road which situate in between house of accused and his house. But, he claims that at the time of incident, the publics were not walking. He admits that P.W.3 is the maternal uncle and not his neighbor. There is no sale transaction in writing. It is suggested that prior to 2010, all of them are cordial and 15 the same was denied. It is suggested that when the incident took place, more than 100 people were gathered and the same was denied. It is suggested that he cannot tell the overt act of each of the accused and the same was denied. It is elicited that there are two groups in the village, one belongs to Congress and another belongs to Dala. It is suggested that these accused persons have casted their votes against maternal uncle who contested for election and the same was denied. It is suggested that MOs.3 to 7 were there in the house of P.W.3 and they are not belongs to the accused and the same was denied. It is suggested that MO.9 was created and the same was denied. He admits that the house of accused persons and his house are situate in opposite direction. He admits that there is a mud road in front of his house. It is suggested that on the date of the incident, galata was taken place between him and his father and P.W.2 - Puttaswamy Gowda in connection with the properties and the said suggestion was denied. He says that all the weapons are lying in the spot and he only gave the same to the police. 16
13. P.W.2 is the other injured. In his evidence, he reiterates the evidence of P.W.1 about the sale transaction between his brother Puttamadu and the accused persons and how the incident was taken place. He says, in his evidence that Vishakanta and Shankara who were there at the spot, have preserved the Club and Axe. He was subjected to cross-examination. He admits that incident was taken place in the road, which situate in between the house of accused and his house. He admits that prior to 2010, they were cordial. The police came and enquired him in the hospital and he says that his signature was taken to his statement. In the further examination, he says that the incident was taken place in front of the house of accused No.1 and there was sand collection and size stones at the spot. He admits that he did not make the statement before the Police that when he came from the shop and standing in front of his house in terms of Ex.D.1. He admits that he did not mention before the police that Sannappa and Kenchappa did not press his neck and also 17 did not put the sized stones on him. He admits that P.W.3 is the brother-in-law. It is also suggested that galata was taken place between him and his son and his brother - Puttamadu in connection with property issue and the same was denied.
14. P.W.3 is the maternal uncle of P.W.1 and brother-in-law of P.W.2 and he says that on the date of the incident, he was standing in front of the house of P.W.2 and enquiring with P.W.1 about P.W.2. Accused No.1 was sitting in front of his house. P.W.2 is coming towards his house from the shop. At that time, accused No.1 abused him and P.W.2 was consoling him that the sale transaction is already over. Immediately, other accused persons came to the spot with Club, Chopper and Axe and started assaulting on the P.W.2. As a result, he sustained injuries and P.W.1 tried to rescue him. He was also subjected to assault, the accused persons thinking that P.W.2 has lost his life, left the place throwing the weapons at the spot. He himself, Vishakanta and Shankar called Ambulance and shifted the injured P.Ws.1 and 2 to the hospital. The sister 18 of P.W.2 also accompanied him and she took the injured P.W.2 to K.R Hospital as per the advise of the Doctor. It is also his evidence that he himself and P.W.1 showed the place of the incident to the police. The police came and seized the stained mud, unstained mud, shirt of P.W.1 and seized the weapons. The police have drawn the mahazar and obtained his signature as per Ex.P.2(b). He was subjected to cross-examination, he admits that they were cordial prior to 2010. Accused - Kaleel inflicted the injury with Axe on the head of P.W.2. Accused Nos.2, 3 and 6 assaulted with club i.e., M.Os.3 and 5, but he cannot accurately state as to which weapon they were having. It is suggested in the cross-examination that P.W.2 was coming in the scooter, due to skid, he fell down and sustained injuries and the same was denied. In the further examination, he says that he also called in the village as Chandrappa and he falsely deposing that he is calling also as Chandrappa and the same was denied. He says that P.Ws.1 and 2 immediately after the incident were made to lie on the pial of the house and blood stains were also 19 there on the pial. The sister of P.W.1 took the injured - P.W.2 to K.R. Hospital.
15. P.W.4 says that when he went near the house of accused persons, Ambulance came and he went and showed the P.Ws.1 and 2 at the spot. He did not support the case of the prosecution. He was treated as hostile by the learned Public Prosecutor. He admits that all the accused persons are powerful persons in the village. If any incident taken place with regard to accused persons, village leaders will not come to do any panchayath, since the villagers afraid of these accused persons. In the cross- examination, it is suggested that he did not witness lifting of P.Ws.1 and 2 at the spot and the same was denied.
16. P.W.5 is the Doctor. In his evidence, he says that on 30.10.2010 at about 9.45 a.m., the injured - P.W.1 came to hospital and he subjected him for examination. He found four injuries and issued Wound Certificate in terms of Ex.P.5. It is also his evidence that on the same day at 10.00 a.m., the father of the P.W.1 20 i.e., P.W.2 also came to hospital along with one Balachandra and he subjected for examination. He found the six injuries in terms of Ex.P.6. He says that MO.7 could cause the injury No.1, which is mentioned in Ex.P.6. The other injuries could be caused by using MOs.3, 4 and 5. He was subjected to cross-examination. In the cross-examination, he says that he examined the P.W.2. One teeth was broken. It is suggested that if MOs.3 to 5 and 7 are used the injuries mentioned in Exs.P.5 and 6 could not be caused and the same was denied. He admits that the weapons are not sent and not obtained any report. He admits that as per history, he has mentioned the same in the MLC Register. The name is mentioned as Chandrappa and in the bracket, which is mentioned as Balachandra. He also admits that P.Ws.1 and 2 have made the statement that they were assaulted with stick and stone by Sannappa and he did not mention the name of the father of Sannappa. He admits that for the first time, he is seeing the Club and Axe before the Court. 21
17. P.W.6, in his evidence, he says that there was a sale transaction between him and accused No.1 and he received an amount of Rs.1,000/- and the same was repaid. He also says that accused No.1 used to make galata with his brother - P.W.2 often and often stating that he did not pursue PW.6 to sell the property to accused No.1. In the cross-examination, he admits that all the accused are belong to that village and they are relatives. He further admits that accused No.1 is having more properties. He also admits that he used to do his agricultural work and looking after his agricultural land. It is suggested that he did not advance the amount of Rs.1,000/- to him and the same was denied.
18. P.W.7 is the witness about the seizure of weapons, stained mud and unstained mud. He says that Balachandra produced three clubs, one chopper and one axe, which were kept in the house of P.W.2 and also shirt of the P.W.1 before the police and the same are seized and the police have drawn the mahazar in terms of Ex.P.1. He 22 identifies his signature as Ex.P.2(c). In the cross- examination, he admits that the house of accused No.1 and house of P.W.2 are in the opposite direction and there are roads in the other direction. He admits that P.W.3 produced the things which were kept in the house of P.W.2.
19. P.W.8, in his evidence says that P.W.1 produced the blood stained Baniyan of P.W.2 on 03.11.2010 at about 10.00 a.m., The mahazar was drawn in terms of Ex.P.3 and he identifies his signature. It is suggested that no mahazar was drawn and he did not go to police station and MO.9 was not seized and the said suggestion was denied.
20. P.W.9 is the sister of P.W.2. In her evidence, she says that she has witnessed the incident of assault made to P.Ws.1 and 2 and also explained the overt act of each of the accused persons. It is also her evidence that she only shifted P.W.2 to K.R.Hospital from Bannur Government Hospital. The witness also identifies M.Os.3 to 5 and 7 so also MOs.8 and 9. She was subjected to cross- 23 examination. In the cross-examination, she admits that in between two houses, there is a tar road. The witness also admits that the door of the accused persons were not facing towards tar road. The witness admits that for having advanced the amount of Rs.1,000/- and returning the same. With regard to the enmity and abusing the father of P.W.1 by accused No.1, no complaint was given. It is suggested that on the date of the incident, Puttamadu, P.W.2 and accused No.1 were also went to their land. When she saw the injured persons, blood stains were there on the pial of the house. P.W.1 was lying in the very same place. It is suggested that the incident was taken place near land between P.W.2, P.W.1 and P.W.6 and the said suggestion was denied. P.W.9 claims that she came to spot when the accused No.1 was pressing the neck of P.W.2. It is suggested that she is deposing falsely that she came at that time and the said suggestion was denied.
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21. P.W.10 is the hearsay witness. He says that he came to know that P.Ws.1 and 2 were subjected to assault. The supporters of accused No.1 were assaulted them. He found the injuries on the head of P.W.1 and P.W.2 was getting the blood from the mouth. The witness was treated as hostile and elicited that accused Nos.1 to 6 are powerful persons in the village. He also admits that the village people afraid of these persons, since they were not hearing the words of the elders in the village.
22. P.W.11 is the Police Head Constable. In his evidence, he says that the statement of P.W.1 was presented before him and based on the same, he registered the case and sent the FIR to the Court and to the Superior Officers. He identifies his signature as Ex.P.8(a). He also identifies the signature on Ex.P.1(a). He also says that the articles are seized at the spot by drawing mahazar in terms of Ex.P.2. Thereafter, he entrusted further investigation to C.W.13. In the cross- examination, he admits that in between two houses, there 25 is a mud road and the said mud road reaches to tar road. Further admits that the said tar road reaches to Madrahalli.
23. P.W.12 is the Head Constable. In his evidence, he says that he has recorded the statement of P.W.1 with the permission of the Doctor and on his presence from 12.30 p.m. to 1.00 p.m. in terms of Ex.P.1. He identifies his signature as Ex.P.1(c) and also the signature of the Doctor as Ex.P.1(d). He was subjected to cross- examination. It is elicited that as per instruction of SHO - Kanakaraju, he recorded the statement of P.W.1 and falsely deposing the same and the same was denied.
24. P.W.13 is the Sub-Inspector and he says that he has recorded the statement of the witnesses after taking the further investigation from P.W.11. He also seized the blood stained baniyan of P.W.2 and identifies as MO.9 so also his signature as Ex.P.3(c). He also says that he has recorded the statement of the injured and PW.2 and released the accused persons in terms of anticipatory bail order. He also collected the wound certificate - Exs.P.5 26 and 6. After completion of the investigation, filed the charge sheet. In the cross-examination, he denies the suggestion that he did not receive the memo from the Hospital but he claims that the said document was not produced before the Court. He admits that he has recorded the statement of P.W.3 in the police station.
25. P.W.14 is the Sub-Inspector and says that he has received the FSL Report in terms of Ex.P.10 and also Serology Report in terms of Ex.P.11.
26. Having considered both oral and documentary evidence available on record, this Court has to re-appreciate the same keeping in view the contentions urged by learned counsel for the accused, since the accused persons have challenged the very order of conviction passed against them. The State has also filed an appeal in Criminal Appeal No.796 of 2013 questioning the acquittal of accused for the offence punishable under Section 307 read with Section 149 of Indian Penal Code. 27
27. The prosecution has mainly relied upon the evidence of P.Ws.1 and 2, son and father respectively, who have sustained injuries in the incident that has taken place on 30.10.2010 at 9.00 a.m. The evidence of P.Ws.1 and 2 is specific that P.W.6, Puttamaadu agreed to sell his property in favour of accused No.1 and an amount of Rs.1,000/- was paid as advance. Later, P.W.6 returned back the said amount to accused No.1 stating that he will not sell the property. The grievance of accused No.1 against P.W.2 is that, he did not pursue P.W.6 and complete the sale transaction. Hence, in this regard accused No.1 used to abuse P.W.2. On the date of the incident, again accused No.1 abused P.W.2 in this regard stating that he did not persuade P.W.6 for completing the sale transaction. At that time, the incident has taken place. P.W.6 also states with regard to the alleged sale transaction. It is also not in dispute that the injured persons are cousins of the accused persons. P.Ws.6 and 2 are the brothers.
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28. P.Ws.1 and 2 categorically state that the accused persons have assaulted them with axe and clubs. The specific overt act against each of the accused persons are deposed. In the cross-examination of P.W.1, he denies the suggestion that prior to this incident, they were cordial. But, P.W.2 admits that they were cordial. A defence was taken that P.W.3, who is the maternal uncle of P.W.1, contested for election and accused persons have worked against P.W.3 and hence, there was an ill-will. Hence, they have been falsely implicated in this case and the said suggestion is denied. In the cross-examination of P.W.1, nothing is elicited to disbelieve the evidence and so also in the cross-examination of P.W.2, who also sustained injuries, nothing is elicited to disbelieve the evidence of prosecution. The evidence of P.Ws.1 and 2 is consistent with regard to the incident is concerned. No doubt, P.W.3, who is a relative of P.Ws.1 and 2 states that when he was in front of house of P.W.2, the accused persons enquired P.W.1 about P.W.2, and when P.W.2 came towards his house, at that time, these accused persons have assaulted 29 P.W.2. In the cross-examination of P.W.3, he admits that prior to the incident, the accused persons and P.Ws.1 and 2 were cordial. It is suggested in the cross-examination that, P.W.2 fell down from the scooter and as a result, he has sustained the injuries, the same was denied. Nothing worth while is elicited in his cross-examination.
29. P.W.4 did not support the case of prosecution. While cross-examining him, answers are elicited that accused persons are powerful in the village and they were not hearing the words of Panchayatdars and the village people used to get afraid of them. He did not support the recovery of articles.
30. The other important witness is P.W.5, the Doctor who has treated P.Ws.1 and 2 on the same day when they were shifted to Hospital at 9.45 a.m. by P.W.3. He has deposed that, he treated them and gave the wound certificates in terms of Exs.P5 and P6. He also opined that the injuries found could be caused by using M.Os.3 to 5 and 7. In the cross-examination, he states that P.W.2 has 30 lost one teeth. It is suggested that M.Os.3 to 5 and 7 could not cause the nature of injuries mentioned in Exs.P5 and P6. He categorically denied the said suggestion. However, he admits that M.Os.3 to 5 and 7 were not sent to him to obtain the opinion.
31. The mahazar witness P.W.7 also confirms that the weapons which were used to assault was seized from the house of P.W.2 which were kept by P.W.3. In the cross-examination, nothing is elicited to disbelieve the seizure of material objects. P.W.8 also supports the seizure of banian of P.W.2 and nothing is elicited to disbelieve the evidence of P.W.8. Though the prosecution relies upon the other eye witness P.W.9, nothing is elicited that she did not witness the incident. But in the cross- examination, it is elicited that, she came to the spot when accused No.1 was pressing the neck of P.W.2. It is suggested that, she came to the spot only after P.W.2 was made to lay down at the spot and the same was denied. 31
32. Having taken note of the evidence of injured witnesses P.Ws.1 and 2 and the evidence of P.Ws.3 and 8, who are eye witnesses to the incident coupled with the medical evidence of the Doctor, P.W.5, it is clear that the incident has taken place at 9.00 a.m. and immediately, within a span of 45 minutes, the injured persons were taken to the Hospital and the Doctor has issued wound certificates at Exs.P5 and P6 and the injured persons have made the statement before the Doctor that they suffered the injuries on account of assault. The same is corroborated by the documents at Exs.C1 and C2 and the Medico Legal Case extract.
33. Though in the wound certificates, the name of the assailant has not been mentioned, but in Ex.C1, it is mentioned that hit by Sannappa with stick and stone. No doubt, there is a discrepancy in mentioning the same as stone instead of clubs, the same cannot be considered as a major contradiction to disbelieve the case of the prosecution. It is also important to note that, it is the 32 consistent evidence of prosecution that injured persons were taken to Hospital by P.W.3, but there is discrepancy in mentioning the same as brought by 'Chandrappa'. But in the bracket, it is mentioned as 'Balachandra' and an explanation was also given before the Court that he is also called as 'Chandrappa'.
34. Learned counsel for the accused has relied upon the judgment reported in 2019 (1) AKR 555 in the case of STATE OF KARNATAKA -VS- ASHOK GANAPATHI JAGIRDAR AND OTHERS, wherein it is observed that weapon seized by the Investigating Officer has not been referred to the Doctor for obtaining his opinion about the possibility of injuries being caused by such weapon and the said circumstance creates doubt. No doubt in the case on hand also, the weapons seized were not referred to P.W.5, the Doctor to obtain his opinion. But the evidence of the Doctor, is consistent that the injuries sustained by P.Ws.1 and 2 could be caused by using axe and clubs. Taking into consideration the fact that the incident is of ten years old, 33 the sentence was modified. In the case on hand also, the material is consistent regarding the case of the prosecution. Hence, the judgment will not come to the aid of the accused persons.
35. Having considered the evidence of prosecution witnesses, injured witnesses P.Ws.1 and 2, medical evidence, consistent evidence of panch witness and so also the mahazar witnesses, who were present at the time of seizure of the clothes belonging to P.Ws.1 and 2 i.e., shirt and banian respectively and also the seizure of clubs and axe, there is no material on record to disbelieve the case of the prosecution. The Forensic Science Laboratory report and Serology report which are marked at Exs.P10 and P11 corroborates the fact that the seized articles were stained with blood. The Serology report also confirms that item Nos.1 and 3 to 7 are stained with 'O' blood group and item No.4, the banian belonging to P.W.2 is stained with 'A' blood group. Hence, it is clear that the prosecution has proved the case beyond reasonable doubt against the accused persons. Therefore, we do not find any reason to 34 interfere with the order of the trial Court with regard to the conviction of the accused persons for the offences punishable under Sections 143, 148, 341 and 324 read with Section 149 of Indian Penal Code.
36. With regard to the other contention of the State that the Court below has committed an error in not convicting the accused persons for the offence punishable under Section 307 read with Section 149 of Indian Penal Code, though this Court has come to the conclusion that the prosecution has proved the case beyond reasonable doubt, the Court has to examine whether the accused persons with an intention to take away the life of P.Ws.1 and 2 assaulted them. No doubt, initially the accused persons assaulted P.W.2 with axe and clubs, when P.W.1 came to the spot to rescue his father, he was also subjected to assault. If really the accused persons have intended to take away the life of P.Ws.1 and 2, they would have inflicted more injuries. But, the same has not been done. Only during the scuffle, the injuries are inflicted on P.Ws.1 and 2. The evidence of the prosecution witnesses 35 is also not consistent with regard to the fact that with an intention to take away the life of P.Ws.1 and 2, the accused persons inflicted injuries.
37. The Court below, while convicting the accused persons has made an observation that there was no element of intention to take away the life of P.Ws.1 and 2. It is also pertinent to note that, P.Ws.2 and 3 have categorically deposed that prior to the incident, they were cordial and only on account of sale transaction not being completed by P.W.6 in favour of the accused persons, ill-will has arisen and there was no prior enmity between them. Though the P.W.1 denies the suggestion that they were cordial prior to the incident, the evidence of the prosecution is clear that there was no prior ill-will between them and also there was no motive to take away the life of P.W.2. The Court below, while acquitting the accused persons has also assigned reasons that there was no intention to take away the life. Having considered the material on record, we also do not find any reason to 36 reverse the findings of the trial Court to convict the accused persons for the offence punishable under Section 307 read with Section 149 of Indian Penal Code.
38. However, on perusal of the judgment passed by the trial Court, it is evident that no imprisonment was ordered but, only fine of Rs.500/- each for the offence punishable under Sections 143, 148 and 341 read with Section 149 of Indian Penal Code and a fine of Rs.2,000/- each for the offence punishable under Section 324 of Indian Penal Code was imposed. It appears that the fine imposed by the trial Court is not just and reasonable when the accused persons were not awarded any sentence. The Court below ought to have taken note of the injuries sustained by P.Ws.1 and 2, while imposing the fine. Having regard to the nature of injuries sustained by P.Ws.1 and 2, the order of the trial court is modified and the fine amount imposed by the trial Court is hereby enhanced.
39. In view of the discussions made above, we pass the following:
37
ORDER
1. Criminal Appeal No.796 of 2013 filed by the State is partly allowed by modifying the amount of fine imposed by the trial Court and Criminal Appeal No.126 of 2014 filed by the accused persons are hereby dismissed.
2. The accused Nos.1 to 6 are ordered to pay a fine of Rs.2,000- each for each of the offences punishable under Sections 143, 148 and 341 read with Section 149 of Indian Penal Code. In default to pay the fine amount, the accused persons shall undergo simple imprisonment for a period of one month each for each of the offences.
3. The accused persons are ordered to pay a fine of Rs.5,000/- each for the offence punishable under Section 324 read with Section 149 of Indian Penal Code. In default to pay the fine amount, the accused persons shall undergo simple imprisonment for a period of three months.38
4. Out of the fine amount, an amount of Rs.40,000/- is payable to P.W.2, an amount of Rs.20,000/- is payable to P.W.1 on proper identification and the remaining amount of Rs.6,000/- shall vest with the State.
5. Needless to state that, if any of the accused persons were in custody during the course of trial, they are entitled for the benefit of set off under Section 428 of Code of Criminal Procedure.
Sd/- Sd/-
JUDGE JUDGE
NBM/ST