Karnataka High Court
Sri Chandra @ Chandrashekara vs State By Turuvekere Police on 12 December, 2012
Bench: K.L.Manjunath, B.Manohar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF DECEMBER 2012
PRESENT
THE HON'BLE MR. JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE B.MANOHAR
CRL.A.NO.249 OF 2009
C/W
CRL.A.NO.111 OF 2009
CRL.A.NO.249 OF 2009
BETWEEN
SRI.CHANDRA @ CHANDRASHEKARA
S/O SHIVANNA
AGED ABOUT 35 YEARS
RESIDENT OF
DODDAMALLIGERE PALYA
MAYASANDRA HOBLI
TURUVEKERE TALUK ...APPELLANT
(BY SRI.AMAR A CORREA, SPP)
AND
STATE BY TURUVEKERE POLICE
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE. ...RESPONDENT
(BY SRI.SAMPANGIRAMAIAH, HCGP)
2
THIS CRL.A. IS FILED UNDER SECTION 374 (2)
OF THE CODE OF CRIMINAL PROCEDURE BY THE
ADVOCATE FOR THE APPELLANT/S WITH A PRYAER
TO SET ASIDE THE JUDGEMENT DATED
12/15.12.2008 PASSED BY THE FIRST ADDITIONAL
SESSIONS JUDGE, TUMKUR IN S.C.NO.107/2000-
CONVICTING HIM FOR THE OFFENCE P/U/S 326, 302
R/W 34 IPC, SEC. 109 & 302, 114 R/W 326 & 302 OF
IPC AND THE APPELLANT/ACCUSED NO.4
SENTENCED TO SUFFER SIMPLE IMPRISONMENT OF
6 YEARS AND ALSO TO PAY FINE OF RS.2000/- AND
IN DEFAULT OF PAYMENT O FINE HE HAS FURTHER
TO SUFFER SIMPLE IMPRISONMENT OF 1 YEAR FOR
THE OFFENCE P/U/S 114, 326 AND 302 OF IPC AND
FURTHER SENTENCED TO SIMPLE IMPRISONMENT
OF 5 YEARS AND ALSO TO PAY FINE OF R.2,000 AND
IN DEFAULT OF PAYMENT OF FINE THE ACCUSED
NO.4 SHALL FURTHER SUFFER SIMPLE
IMPRISONMENT OF 1 YEAR FOR THE OFFENCE
P/U/S 109 R/W SEC 302 OF IPC. THE SENTENCES
SHALL RUN CONCURRENTLY.
CRL.A.NO.111/2009
BETWEEN
SHIVARUDRAIAH
S/O THAMMAYYANNA ALIAS MAYANNA
AGE: 29 YRS, OCC: AGRICULTURIST
R/O DODDAMALLIGERE PALYA
MAYASANDRA HOBLI
TURUVEKERE TALUK
...APPELLANT
(BY SRI.C.V.NAGESH SR.ADV. FOR
SRI.RAGHAVENDRA K, ADV.)
AND
THE STATE OF KARNATAKA
THROUGH TURUVEKERE POLICE STATION
REPRESENTED BY ITS
3
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE. ...RESPONDENT
(BY SRI.SAMPANGIRAMAIAH, HCGP)
THIS CRL.A. IS FILED UNDER SECTION 374(2)
CR.P.C. WITH A PRAYER TO SET ASIDE THE
JUDGEMENT AND ORDER OF CONVICTION DATED
12.12.2008 PASSED BY THE I ADDL. S.J., TUMKUR IN
S.C.NO.107/00 - CONVICTING THE
APPELLANT/ACCUSED NO.2 FOR THE OFFENCE
P/U/S 326, 302 R/W 34 IPC, 109, 302, 114 R/W 326
AND 302 OF IPC APPELLANT/ACCUSED NO.2
SENTENCED TO SUFFER S.I. FOR 6 YEARS AND TO
PAY A FINE OF RS.2,000/- AND IN DEFAULT OF
PAYMENT OF FINE AND FURTHER SUFFER S.I. OF 1
YEAR FOR THE OFFENCE P/U/S 326 OF IPC AND
FURTHER HE SENTENCED TO SUFFER
IMPRISONMENT FOR LIFE AND TO PAY A FINE OF
RS.3,000/- AND I.D. FOR PAYMENT OF FINE THE
ACCUSED NO.2 SHALL FURTHER SUFFER S.I. OF 3
YEARS FOR THE OFFENCE P/U/S 302 R/W 34 OF
IPC. THE SUBSTANTIVE SENTENCES IMPOSED ON
ACCUSED NO.2 SHALL RUN CONCURRENTLY. THE
APPELLANT/ACCUSED NO.2 PRAYS THAT HE BE
ACQUITTED.
THESE CRL.APPEALS COMING ON FOR HEARING
THIS DAY, K.L.MANJUNATH J., DELIVERED THE
FOLLOWING:
JUDGMENT
These two appeals are preferred by the appellants being aggrieved by the judgment conviction and order of sentence passed by the First Additional Sessions Judge, Tumkur, on 12.12.2008 in S.C.No.107/2000 convicting 4 the appellants for the offences punishable under Sections 326, 302 r/w Section 34 of Indian Penal Code, Sections 109, 302 & 114 r/w Section 326 & 302 of IPC.
2. The appellant in Crl.A.No.111/2009 has been sentenced to suffer simple imprisonment of six years and to pay a fine of Rs.2,000/- and in default of payment of fine, to undergo further Simple Imprisonment of one year for the offence punishable under Section 326 of the Code. He has been further sentenced to suffer Imprisonment for life and to pay a fine of Rs.3,000/- and in default of payment of the fine to further suffer Simple Imprisonment of three years for the offence punishable under Section 302 r/w Section 34 IPC.
3. The appellant in Crl.A.No.249/2009 has been sentenced to suffer Simple Imprisonment for one year for the offence punishable under Section 114, 326 and 302 of IPC. He has been further sentenced to suffer simple imprisonment of five years and pay a fine of Rs.2,000/- and in default of payment of fine he shall further suffer Simple Imprisonment for one year for the 5 offence punishable under Section 109 r/w Section 302 of the Code.
4. PW1 Boramma, wife of deceased Nanjappa handed over Ex.P1 a written complaint to the PSI, PW32- Lakshminarasimhaiah at Vaddanaghatta village where the alleged incident has taken place. The complaint received by PW32 was sent to the Station House Officer through HC 26 and a case was registered in Crime No.3/2000 by the SHO, Turuvekere. According to the complaint, complainant is a resident of Doddamalligerepalya. She is residing with her husband and children and that there was a dispute between her family members and one Thammayappa who is also a resident of the same village in regard to the use of cart road. Thammayappa and his children had a grudge against her husband and children and in this connection they were making preparations to assault her husband and her children.
5. On 8.1.2000 at about 11.00 a.m. when she was at her land at Doddamalligerepalya, Thammayappa came near her land on his bullock cart, when she 6 obstructed for use of her land, there was verbal exchange between Thamayappa and her and an attempt was made by Thamayappa to assault her. It is her further complaint that she reported the said incident to her husband Nanjappa and Son Mayanna for which Nanjappa and her son Mayanna with an intention to lodge a police complaint at about 12.00 p.m. were waiting for the bus at Vadavanaghatta Village in front of the cycle shop of one B.H.Narayanaswamy. At about 12.30 p.m. A2-Shivarudraiah and one Nanjundappa, A4-Chandra, A5-Shankarappa, A6-Jayaram, A7- Nanjappa came together and A2-Shivarudraiah had a chopper in his hand and having seen PW1, questioned her what made her to attack his father and that she is unnecessarily giving problem to use the cart road and all of a sudden, Shivarudraiah assaulted her husband Nanjappa with the chopper on his head as a result of which, her husband fell down. When her son PW-7 Mayanna made an attempt to rescue her husband, A2 assaulted with the chopper on the right palm and the remaining accused also bet her husband and he died 7 due to profuse bleeding. Based on Ex.P1 investigation was conducted by PW33 - Venkatesh. The next day the body of the deceased was sent for Autopsy. Autopsy was conducted as per Ex.P20 by PW25 -
Dr.B.K.Shankar and inquest was made on 9.1.2000 as per Ex.P2 between 7.00 and 10.00 a.m. and statement of witnesses were recorded on 9.1.2000. Panchanama was drawn on 9.1.2000. Similarly as per Ex.P3 one more spot panchanama drawn on 25.1.2000 and several panchanamas were drawn on different dates as and when accused persons were arrested by the Police.
6. Charge sheet was filed before the JMFC, Turuvekere. Since the charges leveled against the accused persons were exclusively triable by the Sessions Court, the case was committed to the Sessions Court by the JMFC, Turuvekere. The following charges were framed by the Sessions Court:
"1. That on 8.1.2000 at 12.30 noon at Vadavanagatta village by the side of Mugulur road, in front of the shops of CW3 B.H.Narayanaswamy and CW5 B.Raju, within 8 the limits of Turuvekere Police Station, your A2 to A7 were members of an unlawful assembly, the common object of which was to cause hurt to CW1 Boramma, CW2 Mayanna and deceased Nanjappa and thereby committed an offence punishable under section 143 of IPC and within my cognizance.
2. That you A2 to A7 on the abovesaid date, time and place, were members of an unlawful assembly and in prosecution of the common object of such assembly, voluntarily caused hurt to CW1 Boramma by assaulting her with hands and thereby committed an offence punishable under section 323 R/W 149 of IPC and within my cognizance.
3. That you A2 on the abovesaid date, time and pace, voluntarily caused grievous hurt to CW2 Mayanna by assaulting him with chopper which if used as weapon of an offence is likely to cause death and thereby committed an offence punishable under section 326 of IPC and within my cognizance.
4. That you A2 to A7 on the abovesaid date, time and place, were members of an unlawful assembly and in prosecution of the common object of such assembly, did commit murder by intentionally causing the death of Nanjappa by you A1 assaulting him with chopper on his fore head and you A2 to A7 assaulting him with hands all over his body, and thereby committed an offence punishable under section 302 R/W 149 of IPC and within my cognizance.9
5. That A2 to A7 on the abovesaid date, time and place committed the offence of murder, and that you A1 at Doddamalligerepalya, abetted the said A2 to A7 in the commission of the said offence of murder, which offence was committed in consequence of your abetment, and that you A1 thereby committed an offence punishable under sections 109 and 302 of IPC and within my cognizance.
6. That you A4, on the abovesaid date, time and place abetted A2, A3 and A5 to A7 to murder CW2 Mayanna and deceased Nanjappa by assaulting them with chopper, and in consequence of your abetment, A2 assaulted CW2 Mayanna by means of Chopper causing grievous injuries to him, and assaulted the deceased Nanjappa by means of chopper on his fore head and you A3, A5 to A7 assaulted CW2 and deceased Nanjappa by means of hands, and that you A4 thereby committed offences punishable under section114 R/W sections 326 and 302 of IPC, and within my cognizance. "
7. The accused pleaded not guilty, they claim to be tried.
8. In order to prove the case of the prosecution, the prosecution relied upon the evidence of PWs.1 to 33 and Exs.P1 to P35 and M.Os.1 to 12. The statement u/s 313 was recorded and accused denied the 10 incriminating evidence deposed against them and in defence they relied upon the evidence of DW1 - Shivarudraiah and Ex.D1 a portion of the statement made by PW30 - D. Neelakantappa. The learned Sessions Judge, after hearing the Public Prosecutor and the defence counsel formulated the following points for his consideration:
1) Whether the prosecution proves that on 8.1.2000 at about 12.30 noon at Vadavanagatta village by the side of Mugulur road, in front of the shop of CW3 B.H.Narayanaswamy and CW.5 S.Raju, within the limits of Turuvekere police station, A2 to A7 were members of an unlawful assembly with common object of which was to cause hurt to CW.1 Boramma, CW.2 Mayanna and deceased Nanjappa and thereby committed the offence punishable under Sec.143 of IPC beyond all reasonable doubts?
2) Whether the prosecution further proves that the accused persons 2 to 7 on the said date, time and place were the members of an unlawful assembly in prosecution of their common object of such assembly, voluntarily caused hurt to CW.1 Boramma, by assaulting her with hands and thereby committed the offence punishable under Sec.323 r/w Sec.149 of IPC beyond all reasonable doubts?11
3) Whether the prosecution further proves that the accused No.2 on the said date, time and place voluntarily caused grievous hurt to CW.2 Mayanna by assaulting him with chopper which if used as weapon of offence is likely to cause death and thereby committed the offence punishable under Sec.326 of IPC beyond all reasonable doubts?
4) Whether the prosecution further proves that the accused persons 2 to 7, on the said date, time and place were members of an unlawful assembly and in prosecution of common object, did commit the murder by intentionally causing the death of Nanjappa by A2 assaulting with chopper on his forehead and A2 to A7 assaulted him with hands all over the body and thereby committed the offence punishable under Sec.302 r/w Sec.149 of IPC beyond all reasonable doubts?
5) Whether the prosecution further proves that the accused persons on the said date, time and place, committed the offence of murder, and that A1 at Doddamalligerepalya, abetted the A2 to A7 in commission of the offence of murder, which offence was committed in consequence of abetment of A1 and thereby committed the offence punishable under Sec.109 and 302 of IPC beyond all reasonable doubts?
6) Whether the prosecution further proves that the accused No.4 on the said date, time and place, abetted A2, A3, A5 to A7 to commit murder of C.W.2 Mayanna and deceased Nanjappa by assaulting them with 12 chopper and in consequence of their abetment A2 assaulted C.W.2 Mayanna by means of copper causing grievous injuries to him and assaulted deceased Nanjappa by means of chopper on his forehead and A3, A5 to A7 assaulted C.W.2 and deceased Nanjappa with hands and A4 thereby committed the offence punishable under Sec.114 r/w Secs.326 and 302 of IPC beyond all reasonable doubts?
7) What order?
9. After appreciating the oral and documentary evidence and the arguments advanced by the learned counsel for the parties, the Sessions Judge held points- 1 and 2 in negative, point-3 in affirmative only against A2, Point-4 partly in affirmative against A2 and A4, point-5 partly in affirmative against A2 and A4, point-6 partly in affirmative against A2 and A4 and ultimately acquitted A1, A3, A5 to A7 and convicted A2 and A4 for the offences punishable under sections 326 IPC so far as A2 is concerned and Sections 114, 326 and 302 IPC so far as A4 is concerned. Accordingly, they are sentenced to undergo an imprisonment as aforesaid. 13
10. Challenging the legality and correctness of the Judgment of conviction and sentence, A2 and A4 have preferred these appeals. The State has not filed any appeal against the Judgment of acquittal of A1, A3 and A5 to A7.
11. We have heard Mr. C.V.Nagesh, learned Senior counsel appearing for the appellant in Criminal Appeal No.111/09, and the learned counsel appearing for the appellant in Criminal Appeal No.249/09 and Mr. Sampangiramaiah, Additional Govt. Pleader for the State.
12. Though several grounds have been urged in the appeal Memo, during the course of arguments the learned counsel appearing for the appellants have raised the following grounds in support of their case. According to them, at the first instance, Turuvekere Police had no jurisdiction to register the case and file the charge sheet as the alleged incident said to have taken place within the jurisdiction of Mayasandra Police. The charge framed by the Sessions Court is not based on the complaint and charge sheet filed by the 14 Police. He further contends though there is no corroboration in the evidence of the prosecution witnesses and the evidence of PWs.1, 7, 4 are in contradiction to the medical evidence, the Sessions Court without appreciating the evidence has erroneously convicted the appellants herein without considering the charges framed against them and without appreciating the evidence let in by the prosecution. In other words, they contend that the appreciation of evidence by the Sessions Court is perverse and liable to be set aside. According to them, as could be seen from Ex.P1 complaint, there are no allegations against A1 and it is not the case of PW1 that A4 did instigate A2 to assault the deceased with the chopper MO7. According to him, such an incident did not take place on 8.1.2000 at 12.30 p.m. and that the deceased Nanjappa did not die in the alleged incident. According to him, considering the medical evidence and more particularly, evidence of Dr. B.K.Shankar - PW25, deceased could not have died on account of the injuries said to have been sustained by him. According to him, 15 PW25 has deposed in his evidence that the entire body was intact, there were no fractures either on the forehead or on the skull and the injury found on the dead body of deceased as per PM report and Accident register, only a simple injury on the forehead of 3 c.m. in length and that it is not even a incised wound. According to him, PW25 Dr.B.K.Shankar, has clearly admitted that with such injury a person could not have died. He further contends when the incident is said to have taken place at the bus stand of Vadavanagatta in front of cycle shop of Narayanaswamy, there are several hotels and shops, when such an incident has taken place at about 12.30 in the broad light, atleast the people would have made arrangement to shift the deceased for treatment to a hospital at Mayasandra, which is at a distance of 4 to 5 KMs. and no attempt is made by any one to shift the deceased for treatment and when such an injury could not cause the death of a person, the prosecution cannot link either A2 or A4 with the death of the deceased. He further submits that though the prosecution has relied upon the evidence of 16 PWs.1 to 32, the prosecution has failed to bring home the guilt of the accused because of various contradictions in the evidence of PWs.1, 7, 4, 5, 9 and
12. According to him, PWs.4, 9 and 12 have not supported the case of the prosecution and there is nothing for the Trial Court to disbelieve their evidence. According to him, the evidence of PW1 and PW7 could not have been believed by the Trial court because there is lot of improvement between Ex.P1 and evidence of PW1. PW1 categorically admitted in her evidence that there is lot of difference between Ex.P1 - complaint lodged by her and her evidence and that there are several mistakes in the complaint. He further contends when the Police had come to the spot on receiving the phone call from an unknown person, the Police could have made an attempt to shift the deceased and PW7 to hospital for treatment. He further submits though the deceased Nanjappa died within 3 hours from the time of sustaining injuries, even though the Police were on the spot, no arrangement was made to shift the dead body for conducting Autopsy immediately and the body 17 was lying on the road till next day 11.00 a.m. He further contends though the Police had arrived to the scene of occurrence within one hour from the time of the incident, for the reasons best known to the prosecution, the statement of the witnesses were not recorded on the same day, inquest was not conducted and spot mahazar was also not conducted. In the circumstances, he requests the court to re-appreciate the entire evidence and set aside the order of conviction.
13. He further contends that according to PW4, PW1 and PW7, A1 assaulted with MO7 chopper on the forehead of the deceased and the forced used by A1 was such MO7 pierced into the forehead and he could not pull out MO7 from the forehead of the deceased and later A2 and A4 by using force removed the chopper which was pierced into the forehead of the deceased. The Medical evidence clearly shows that there was no fracture either on the forehead or on the skull or any portion of the body of the deceased except a simple injury of 3 cms which could not be the cause for the death of Nanjappa. The Trial court without considering 18 the discrepancy in the oral evidence of PWs.1, 4, 5 & 7 and the evidence of PW25 Dr.B.K. Shankar, who conducted Autopsy and without considering the Autopsy Ex.P20, has wrongly convicted the accused. He further contends that as could be seen from Ex.P1, when the incident took place, A4 did not instigate A2 to assault the deceased or PW1 or PW7. Such being the case, A4 could not have been charged for the offence of abetting the crime. Though A1 was not present at the time of the incident, he has been wrongly arrayed and charge No.4 is framed as if A1 also assaulted the deceased which is not even the case of the prosecution. Therefore, he contends that framing of charge is bad in law and appreciation of evidence is perverse.
14. Per contra, Mr.Sampangiramaiah, Additional Govt. Pleader supporting the Judgment of the Sessions Court, contends that the prosecution has proved the guilt of the appellants herein beyond reasonable doubt because the incident has taken place at the Bus stand of Vadavanagatta in the presence of PWs.1 and 7 and other witnesses. When there are eye witnesses to the 19 incident, when A4 has instigated A2 to assault and on account of injury caused by A2 with MO7, the Sessions Judge was justified in convicting the accused persons. In the circumstances, he requests the court to confirm the Judgment by dismissing the appeals.
15. Having heard the counsel for the parties, we have to consider the following points in these appeals:
1) Whether the prosecution has proved that on the instigation of A4, A2 assaulted deceased Nanjappa and PW7 Mayanna and also on PW1 on 8.1.2000 at about 12.30 p.m. in front of the cycle shop of PW12 -
Narayanaswamy, with MO7 - chopper, resulting in homicidal death of Nanjappa?
2) Whether the appreciation of evidence by the Sessions court is just and proper?
16. We have perused the Judgment of the Sessions Court. Though it is a lengthy Judgement, we have noticed that the learned Sessions Judge, upto paragraph-6 has narrated the facts of case and arguments advanced by the Public Prosecutor and 20 defence counsel. In para-7 he has formulated the points for his consideration and in para-8 the findings the Sessions Court on the points formulated by him. From paras-9 to 26, he has narrated the evidence let in by the prosecution and also the defence witness DW1 who is none other than A2 Shivarudraiah. The actual discussion for coming to the conclusion is only in one paragraph i.e. paragraph-27. We have seen para-27 which reads as hereunder:
"27. Therefore, on discussion of the entire materials produced by the prosecution they discloses that, the version of P.W.1 that there is dispute between them and the accused regarding the cart way is supported by PW7 and he version of P.W.1 Boramma discloses that the accused No.4 instigated A2 for assaulting and A2 assaulted with machu on the head of her husband and caused injuries and her husband died on the spot and A2 also raised hands for assaulting P.W.7 her son with machu and the said hit was fallen on the right hand of P.W.7 and there was grievous injury and though P.W.1 deposes regarding the assault by A2 to her with machu on her head but the same is not corroborated by the version of any other witnesses. The beginning part of evidence of P.W.4 Nagaraju and P.W.5 Mahadev also 21 supports the versions of PW.1 & 7 regarding instigation by A4 to A2 and assault by A2 to P.W.7 with machu on his right hand and causing grievous injury and also assault by A2 to Nanjappa with machu on his frontal head and causing bleeding injuries and also his death. Further the version of P.W.7 also supports the version of PW.1 regarding the assault by A2 on the instigation of A4 to him on his right hand and his father with machu on frontal head of his father and causing grievous injuries to them and later the death of his father. So also the version of P.W.9 S.Raju also supports the assault by A2 with machu to P.W.7 on the instigation of A4 and causing grievous injury on his right hand and also assault by A2 to Nanjappa on his head and causing injury and his death. The version of P.W.25 Dr.B.K.Shankar and the post mortem report Ex.P/20 also supports the versions of P.W.1,4,5,9 regarding causing injury to deceased Nanjappa and also the injury to P.W.7 is supported by the medical evidence of P.W.31 Dr. Puttasiddaiah and the wound certificate Ex.P26. Further the other panchas do not support the panchanamas except the seizure panchanama of M.O.7 Ex.P.30 which is produced by A2 from the bush and recovered on the basis of his voluntary statement Ex.P29 given before the I.O. and M.O.8 bicycle seized under panchanama Ex.P.4. Further the investigating office once has prepared spot panchanamas Ex.P3 and P4, but the preparing other panchanams Ex.P10, 32 to 33 which are stated to be prepared on the 22 basis of places shown by accused persons and the said place of incident is already known to the I.O. since he has already prepared the panchanamas Ex.P3 to P4 and the reason for preparing those panchanamas is not forthcoming. Further the accused persons have failed to produce any material to show the circumstances in which their right of private defence was extended for causing grievous injury to P.W.7 and death of deceased Nanjappa by assaulting with machu and not produced any documents before the court for having filed complaint. Further during the examination of accused u/s 313 Cr.P.C. the accused persons have also produced the Xerox copy of medical bill but it is not forthcoming as to who has issued the said bill. The original bill has not been produced and so also the prescription chit issued by the Doctor is also not produced. Therefore, the version of those witnesses and the documents discloses that the accused 2 and 4 with common intention came to the spot and A4 Chandra @ Chandrashekar instigated A2 Shivarudraiah for assaulting Nanjappa and others and on the instigation of A4 Chandra, A2 Shivarudraiah assaulted with machu M.O.7 to P.w.7 Mayanna, and while he has raised his hands the said hit was fallen on the right hand and sustained grievous injuries and when Nanjappa intervened the accused No.2 Shivarudraiah also assaulted with machu on his frontal head and caused severe injury and he has died on the spot. The version of P.W.1 and 7 regarding the arrival of all the 23 accused persons to the spot except A2 Shivarudraiah and A4 Chandra @ Chandrashekara, is not supported by the versions of P.W.4, 5, 6 and 9. Further P.W.4, 5 and 9 deposes the presence of A2 Shivarudraiah and A4 Chandra @ Chandrashekara and assaulting P.W.7 Mayanna with machu on his right hand and causing grievous injury and also assault to Nanjappa with machu by A2 on his head and causing severe injuries and his death. Therefore, under these circumstances, I hold that the prosecution has successfully prove the guilt of the accused No.2 Shivarudraiah punishable under Sec.326 of IPC and also A2 Shivarudraiah and A4 Chandra @ Chandrashekara punishable under Secs.302 r/w 34 IPC, 109 and 302 IPC and under Sec.114 r/w 326 and 302 IPC beyond all reasonable doubts and the prosecution has failed to prove the guilt of accused No.1 Thammayanna @ Mayanna, A3 Nanjundappa, A3 Nanjundappa, A5 Shankarappa, A6 Jayarama, A7 Neelagiri Nanjappa punishable u/s 143, 323, 302 R/w 149 IPC and 109 & 302, 114 r/w 326 and 302 IPC. Therefore, I further hold that accused No.2 Shivarudraiah is found guilt of the offence punishable u/s 326 IPC and A2 Shivarudraiah and A4 Chandra @ Chandrashekara are found guilty of the offences punishable under Secs. 302 r/w 34 IPC, 109 and 302 IPC and Sec.114 r/w 326 and 302 IPC. Hence, I answer the points 1 to 6 accordingly. "24
17. On perusal of paragraph-27, we are of the view that the learned Sessions Judge has not applied his mind and has not appreciated the evidence of prosecution or the defence witnesses to come to the conclusion that instigation was done by A4 and A2 assaulted deceased and PW7 with MO7 chopper and on account of the injuries received by deceased Nanjappa from MO7, he died and that the prosecution has proved the guilt of the accused beyond all reasonable doubt. But unfortunately, the learned Sessions Judge did not take pain to discuss the evidence, in order to link the accused with the cause of the death of the deceased Nanjappa. In the circumstances, we are of the opinion, the appreciation of evidence of the Sessions Court is perverse.
18. Having held that the appreciation of evidence is perverse, we have to consider the evidence let in by the prosecution in detail either to convict the accused persons or to acquit them.
25
19. Now in this background, we would like to discuss the evidence let in by the prosecution in order to hold whether the prosecution has proved beyond all reasonable doubt to bring home the guilt of the appellants or not.
20. As stated supra, Ex.P1 is the Complaint lodged by PW1 Boramma, widow of deceased Nanjappa. In the beginning of our Judgment, we have narrated what has been stated in Ex.P1 complaint. In Ex.P1, it is stated by her that there was verbal exchange between A1 and her, when A1 made an attempt to take his bullock cart through her land at Doddamalligere Palya, the said incident was reported to her husband Nanjappa and her son PW7 Mayanna. Then all of them decided to go and lodge a Police complaint. In order to go to Police Station, at about 12.30 noon. they were waiting in the bus stop of Vadavanagatta in front of cycle shop of PW12 Narayanaswamy. At that point of time, A2 to A7 came there and all of a sudden A2 took up quarrel with her for having scolded his father and suddenly assaulted with MO7 chopper on her husband, 26 as a result of bleeding injuries, he fell down and when an attempt was made by her son PW7 to rescue his father, A2 assaulted with the same chopper on the right palm of her son, when she made an attempt to rescue them, the remaining accused assaulted PW7 and deceased Nanjappa and immediately her husband succumbed to the injuries. This incidence has been witnessed by Nagaraju, S/o Thammegowda - PW4 and others. Ex.P1 further reads that A2 has committed murder of her husband with the support of A1 Thammayyanna. From the above FIR, it is clear that there is no instigation by A4 as contended by the prosecution except Nagaraju, no other person has been cited as a witness, though it is stated that others have also seen, the names of other persons witnessed the incident have not been figured in Ex.P1. Presence of A1 is also not figured in Ex.P1. She has been examined as PW1. In her examination-in-chief, she has deposed that when she was waiting with her husband and son at the bus stand of Vadavanagatta, all the accused persons came near the bus stand and A2 enquired about her 27 husband and children and immediately A4 instigated A2 to assault them, A2 with an intention to commit murder of her son PW7, assaulted him with a copper. To prevent the same, PW7 gave his right palm and his fingers were severed. When her husband questioned the accused persons why they are assaulting his son, A2 stating that he will do away with her husband, assaulted her husband with the chopper and he fell down. Thereafter, A2, A3, A5 and A7 kicked her son and C.Ws. 3, 5 and 9 came to the spot and they saw the incident and her husband died. It is also her case that some one informed Turuvekere Police and they came to the spot at about 2.30 p.m. Thereafter, Ex.P1 was lodged by her, which was written by some one who was present there and whose name is not known to her. PW7 was sent for treatment to Adichunchanagiri Hospital and she was also taken to Mayasandra Hospital for treatment. From the above evidence, it is clear that though in Ex.P1, she does not figure A1, she has deposed before the court as if A1 was also present when the incident took place. In Ex.P1, she does not 28 say anything about the instigation made by A4 to A2 to assault her husband and son. For the first time such an improvement is made. According to Ex.P1, A2 directly assaulted deceased husband Nanjappa. But in her examination-in-chief, A2 at the first instance tried to commit murder of PW7 and when her husband tried to rescue him, A2 assaulted her husband and thereafter A2 assaulted PW7, which resulted in chopping of his right fingers.
21. In the cross-examination, she admits though there were several persons were present, no attempt was made to rescue her husband. She has further deposed that she has committed some mistakes in lodging the complaint as per Ex.P1. She does not know who wrote Ex.P1 and the same was written at Vadavanagatta Circle and when Ex.P1 written, it was 3.00 p.m. She does not know what has been written in Ex.P1. She further says that when Police came to the spot at 2.30 p.m. she narrated the incident and that Police have recorded her statement there and that Nagaraju - PW4 and Mahadev - PW5 also gave a 29 statement. She admits that there is a Police Station in Mayasandra. The distance between Mayasandra Police Station and Vadavanagatta is 3 ½ to 4 KMs. and till 8.00 p.m. in the night on that day she was on the spot. According to her, she gave water to her husband when he fell down. She further admits that many buses would ply between Tumkur and Mysore and all the buses would ply through Mayasandra. Many motor cycles and cars are available at Vadavanagatta.
22. PW2 is one Byategowda, who is a panch witness to inquest EX.P2. Inquest has been recorded on 9.1.2000 between 7.00 to 7.30 a.m. According to this witness, he has only signed, the mahazar and the contents of the same is not known to him. Similarly, PW3 Krishnegowda is a witness to inquest report. According to him, he is a professional witness and he will be cited as witness by the Police in many cases and he also stated, he does not know the contents of Ex.P3.
23. PW4 Nagaraju, has been cited as an eye witness in Ex.P1. According to this witness, when he 30 was standing in front of shop of Tailor Raju at Vadavanagatta, Accused 2 and 4 came near the spot and A2 assaulted PW7 and he assaulted deceased on his forehead with the chopper, the chopper pierced into the head of the deceased and he could not pull out the chopper. In the cross-examination, he has stated that he was not present when deceased Nanjappa sustained injury and he learnt the injury sustained by Nanjappa when he was in his village at Aralahalli. Therefore, the evidence of PW4 cannot be considered or accepted and he cannot be considered as an eye witness since he was not present when the incident took place. If his evidence is accepted, when A2 assaulted deceased Nanjappa on the forehead, MO7 pierced into his head, then naturally there shall be a fracture on the head of the deceased. PW5 has been cited as another eye witness. According to him, A2 and A4 came near Vadavanagatta bus stand and A2 assaulted deceased Nanjappa and he also assaulted PW7 Mayanna. On account of the bleeding injury, Nanjappa died on the spot. In the cross-examination he has stated that in 31 his presence no incidence took place and no attempt was made to shift Nanjappa to hospital and that he was present from morning till evening and Police enquired him at about 5.00 p.m. in the evening. According to the Police, the statement of PW4 or PW5 has not been recorded on the day when the incident took place. According to the Police, the statement were recorded on 9.1.2000. But PW1 has stated that the statement was recorded by the Police on the spot on the day when the incident took place which would falsify the case of the prosecution.
24. PW5 also deposed, A2 and A4 came on a bicycle and they parked the bicycle and assaulted. Thereafter, leaving the bicycle they left the place and the said bicycle has not been seized by the Police. PW5 also does not speak about the other accused. According to PW5, except A2 and A4, no other accused persons were there when the incident took place. Therefore, this witness also cannot be considered as an eye witness and it is difficult to believe the version of the prosecution that this witness has seen the incident. 32
25. PW6 is one Hanumanthaiah, who has not seen the incident. He came to the place after the incident and it is he who informed the Police by phone. Therefore, this witness is of no consequence to consider the involvement of A2 or A4.
26. PW7 is the injured who is the son of the complainant and the deceased. According to him, when he was waiting for a bus along with his mother and father in the bus stand of Vadavanagatta, at the first instance, A2 and A4 came and thereafter A3, 5, 6 and 7 came to the spot and A2 scolded his mother and thereafter A2 was instigating to murder him and an attempt was made by A2 to assault him and he sustained injuries to his right palm. When his father came to his rescue, A2 assaulted his father with the chopper which pierced and caught in the head of his father and that his father fell down and died on the spot and that A2 could not pull out MO7. Thereafter, A2 and A4 using force removed the chopper from the head of his father and left the place. If the evidence of 33 PW7 is accepted, the assault made by A2 with the chopper on the head of his father was so forcible that chopper pierced into his head and struck and A2 alone could not remove the chopper from the head of his father and thereafter A2 and A4 by using force removed the chopper. If such an injury is caused, the some could have been find a place in the Autopsy or the same would have been spoken to by PW25 Dr.B.K.Shankar, who conducted the Autopsy which will be considered by us later while considering the evidence of PW25 and Ex.P20. According to him, PW7 was taken to Mayasandra hospital at the first instance and after first aid he was sent for further treatment to Adichunchanagiri Institute of Medical Science. To show that he was first taken to Mayasandra Hospital, where first aid was given, no Doctor has been examined and wound certificate is also not produced by the prosecution. He admits that he did not lodge a complaint before the Mayasandra Police and his statement has also not been recorded by the Police on 34 the same day. According to him, he was accompanied to the hospital by PSI.
27. PW8 is one Ramu, another son of the deceased who was not present when the incident took place and he is a permanent resident of Bangalore. Having learnt the incident, he rushed to the spot.
28. PW9 is one Raju, who is running a tailoring shop in Vadavanagatta. According to him at about 12.30 noon A2 and A4 came to the spot, A2 instigated A4 to assault them, when deceased tried to rescue his son, A2 assaulted on the forehead of deceased Nanjappa with chopper, chopper pierced into his head and it was caught on his head. In the cross-examination he has admitted that 50 to 60 people were there when the incident took place. When the incident took place, he had closed the shop and by the time he came to the spot, the incident had taken place and he has not supported the case of the prosecution. This witness has not been treated as hostile witness by he prosecution. 35
29. PW10 is one Shafiulla, who has not supported the case of the prosecution. PW11 is one Satheesh, he has seen the dead body in the evening of 8.1.2000 at Vadavanagatta. Therefore, the evidence of this witness is of no use to prove the case of the prosecution.
30. PW12 is Narayanaswamy. According to the prosecution, he is an eye witness. According to his evidence, he has not seen the incident and Police have recorded his statement later. He has been treated as hostile witness and nothing has been elicited in his cross-examination. PWs.13, 14, 15 and 26 are panch witnesses who have not supported the case of the prosecution. Even PW19 has not supported the case of the prosecution. PW20 is an Engineer, who has drawn the sketch as per Ex.P15 the scene of occurrence. PW21 is a Police Constable attached to Turuvekere Police Station who has collected the cloths of the deceased from the hospital to the Station by drawing a mahazar as per Ex.P16.
31. The other main witness relied upon by the Prosecution is PW25 Dr.B.K.Shankar, who conducted 36 the Autopsy. Ex.P20 is the Autopsy report. In his evidence, Dr. B.K.Shankar has deposed that Autopsy was conducted on the body between 11.00 and 1.00 p.m. on 9.1.2000, Deceased was aged about 60 years. According to him, death has taken place within 24 hours from the time of the PM. According to him, there was only one injury on the forehead measuring 3 cms. In his cross-examination he has admitted that there was only tare of skin and there was no fracture of bone, skull was intact, brain was intact. If MO7 had pierced into the head of the deceased, a fracture was bound to happen. According to PW25, there was no fracture on the forehead or on the head or skull of the deceased. He further states that considering the injury found on the body of the deceased, he could not have died on account of such injury. He has further stated that if timely medical assistance was given to the deceased, deceased could not have died. He further states that within 3 - 4 hours if the treatment had been given to the deceased, deceased would not have died. As could be seen from Autopsy, there was no fracture to the head 37 or skull of the deceased. Only one injury is 3 cm in length which is nothing but tare of the skin. It is not even a cut injury. The case of the prosecution is that deceased died on account of profuse bleeding and due to shock and haemorrhage. When there is no fracture of the skull or head, there could not have been bleeding injuries as contended by the prosecution. When we scrutinize the evidence of PW25 with Ex.P20, it is difficult for us to believe the evidence of PWs.4, 7 and 1 that on account of the assault made by A2 with MO7 chopper was pierced into forehead of the deceased and was struck in the head and that A2 could not pull out MO7 from the head of deceased and that the same was removed later by using force by A2 and A4. The learned Sessions Judge while considering the medical evidence without scrutinizing the evidence of PWs.7, 4 and 5 has wrongly convicted the accused as if there was an instigation by A4 and A2 assaulted the deceased and on account of the same, the deceased died due to shock and brain haemorrhage.
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32. In the circumstances, we are of the opinion that the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt. Accordingly, we are of the opinion that the findings of the Sessions Court has to be reversed holding that appreciation of evidence by the Sessions Court as perverse. In other words, we are of the opinion there is no appreciation of evidence by the Sessions Court.
33. PW33 Venkatesh was working as Circle Inspector of Police, Turuvekere, who has investigated the case. It is the case of the prosecution that the incident had taken place at 12.30 noon on 8.1.2000. Within an hour or so, the police rushed to the spot. Unfortunately, no attempt was made by the Police to take cognizance of the offence and register the case forthwith and sending PW1 and PW7 to the hospital. If really there were injury no attempt is made to shift the deceased for medical treatment or even if the court holds that by the time the Police came to the spot, deceased Nanjappa had already died, no attempt is made by the Police to shift the dead body to the PM 39 immediately and have allowed the dead body to lie on the road till 11.00 o'clock of next day morning. Though eye witnesses were present when Police rushed to the spot, no statement was recorded on the same day. Inquest was not prepared on the same day. Spot Mahazar was not conducted on the same day. There is no explanation offered by the Police in this regard. Even statement of PW7 has not been recorded on the same day.
34. In para-34, PW33 in his cross-examination has admitted that there is a Police Station at Mayasandra and the distance between the place of incident and the Police Station is only 3 to 5 KMs. and no explanation has been given by the Police in not sending the complaint to the Police Station at Mayasandra, within whose jurisdiction the incident has taken place.
35. From the above discussion, it is clear that the manner in which the investigation is conducted and in not drawing the inquest and spot Mahazar on 8.1.2000 and not recording the statement of eye witnesses who 40 were all present till the late night in the spot with the dead body, would give a doubt in regard the very incident.
36. In the circumstances, we are of the opinion, the appreciation of evidence by the Sessions Court is perverse and liable to be set aside.
37. Accordingly, these appeals are allowed. The Order and Judgment of conviction and order of sentence passed against the appellants by the Sessions Court, Tumkur, in S.C.NO.107/2000 dt.12.12.2008 is hereby set aside. The appellants are set at liberty forthwith, if they are not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE SS/Ak