Karnataka High Court
State Of Karnataka By Raibag Police ... vs Paris Kallappa Magadum on 30 September, 2008
Bench: V.G Sabhahit, S.N.Satyanarayana
IN THE HIGH COURT OF kARmATAKA' ~
CIRCUIT BENCH AT b3ARwAn
DATED THIS THE3?DAy=fifiasEpTEMBERT2053w""S
,_9R2sgNTf .'
THE HON'BLE MR;JUST;é3}V}é}sABaAHIT
THE gofifafié MR Jusyzcg $-sAéiANARAyANA
V~§R§H{NAfi A§PEAfl fiO;291/2002
BETwEEN:K_*'
State of xa;nacaké%"% .';
By Ralbag Police Statgonx
i Vu "V. W Appellant
(fly.Sfi.fifi&n§<§avadg1math, SPF}
ANfi:x
Paris Kaliappfi Maqadum,
_".R£onNasalapur,
"_Taiuk Raibag,
'D1st;~Balgaum. m Respondent
{byH3ri.Jagadish Patil, Adv}
This appeal is filed under Section 378(1) and
(3) Cr.PC praying to grant leave to file an appeal
against the judgment dated 18.9.2001 passed by the
II Addl.S.J., Belgaum in SC.No.11/99 acquittinglthe
respondent~accused for the offence punishable underr
Section 307 IPC. i_
This appeal having been heard ano reaerved for
orders andt coming on for pronouncement_ of uorders
this day, Satyanaxayana 3., deiivered the foilowingéa
aunaunNmt_»
This appeal is filed bf the $tate challenging
the judgment 'at, a;ޤitta;;]dateda'18.9.2991 in
Sessionsi ca§é5;Ngf:i;199é _on the file of the II
AdditionalV Sessionaahflndge, Belgaum, wherein the
accused_vwaa" acqnitteah of having committed the
fhoffenfié'pQhishabie"nnder Section 307 IPC.
h.2}h The nfaots of the case leading up to this
i,' appeai are that, it is the case of the prosecution
:j*£nat:,9n'"6.12.1998 at about 3 pm., pw.:, the
.oompiainant-Chandrakant Payagouda Patii was
rproceeding towards his house riding" a motor cycle
"V
bearing registration No.KA"23/H"472l, while the 7was
paseing in front of the panchayath aff:¢a[f:hé_
respondent/accused is stated to have» attempted tea i
murder the complainant by using _a«jstiek;_",e;fiA_i$
stated the the accused aimed bid» at the head of*r
the complainant who was ridih§Wthe motor cgcieg that
PW.1 avoided and escafied the saidjbiowi as'a result,
the stick hit the reard aided l%§5§SkhOf _the motor
cycle and also !its IneeherLd§ia§é }thereby causing
damage to the ha£§§3ayéi§%o;:gQ5:,hm
3. flficcotdingg to "the 'firosecution, the accused
and the complainant belong to same community and are
also 'related 'in" marriage that has taken place
h_hetween\;,?pé*, members of two families. The
comhlaihahtdhhelengh to Patil family and accused
x'V belongs to Maoadum family. It is the case of the
i"~gprosecution that two of the female membezs 0f the
"4_eégaa§m family were given in marriage to two of the
\Eg malt: memgbers' of Patil familyo of PW.1. The said
hmale members were related to PW.l as uncles. In the
said marriage the female members inherited gl£3"
share of their father's property towards theirfefiereo
and the said properties got merged in_theflpropertieep f
of the Patil family thereby nearly an exteet of §Z3w
of Magadum's family property ceme to Betil family;>r
In this behalf there were iseverél 'seite ffought
between parties reaching ufi fig §he,$upreme"bourt of
Kolhapur prior to indepeneencefanetefter loosing the
legal battle£.th§ memtere 0f the family of accused
murdered twoflma:gf€eemee:fi\f@fo the Patil family on
2.l0.1945:» in tfie.S%i§ erime: the accused and his
brotherfowereofiaieofoineolyed, the brother of the
accused died" efen 'before completion of the trial,
, the atcesed wee sentenced to life term in the said
e case; fhe_éecused herein had taken~up the order of
conviction; afieinst him in an appeal and lost the
V said appeal, thereafter served his term in prison.
*._§. It is the case of the prosecution that the
uf=faceused after completion of the term in the prison
ifhas come back and the enmity between two families
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has increased over a period of time and has_ not
subsided. In this background there are continnohs
minor fights, abuses taking piece betweefii=the'
members of the two families. It is the cese of thed
prosecution that in this backg:oahd1gthe"accpsed
attempted to murder PW.1shona 6.i2.i9987iafi~mahoetVi3:;
pm., by using a stick and aieed a blow with the said
stick tewards the head of PW.1*with an intention to
commit murder of PW.i."._.it: is, the "case of the
prosecution that the said ¢r1hé»was committed near
Panchayeth" offiioey in 'Naslapur village of Raibag
Taluk on the main foadnehd witnessed by PWs.2 to 6,
who were there at the relevant point of time. It is
. the Case'of the pfOSgCUtiOH that on the same day at
drehout:6;bQ,fim., the complainant, PW.1 went to the
Reibagh""§eiice" Station and presented a written
Vh_complaint'as'per Ex.P2 and the same was registered
pw.é;...:'ps1, in crime No.190/1998. in the said
"ncempiaint PW.1 stated that PWs.2, 3 and 4 are the
xd*_eye?witnesses to the incident. That after
vh"~4.registering the complaint, the PSI, PW.8 went to the
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village on the same night, searched for the"accueed_
and found him to be standing near the~bu$,atand ofu i
Naslapur village, that PSI{i PWQ&.hafteated4 the
accused at about 8.30 pm;, alonfik with .§¢:y }samé»_
stick with which he attented to asSauiflFan¢ commit
murder of accused. .The said etick wee aléo seized
under panchanama Ex.P§ in the pregéaés of PW.7, who
is panch witnese and anotheh hahok gdappa Patil and
marked the sane e§_Me,;}, xfhe eaid panchanama was
drawn on~6,i2:1§fi§,betfieenU8,§0 pm., and 9.20 pm.
Thereafter;'ond?;i?.i9§§;'PW.8. the PSI again went
to the village and prapafed the spot panchanama as
_per E3§P6;to which the panchas wexe same as to Ex.P5
;=>:~z:f'fzf Ashok Adappa Patil and the said E1x.P6
wasvdrawfikhefween 9 and 10 am., in the morning in
ii" the pxesencezof the afoxesaid panchas. On the same
3""adey, PWLQ was called upon to produce the motor cycle
h«.in the police station. Accordingly, the same was
"=nhoroduced before PW.8' in the afternoon and it was
flseized under panchanama Ex.P7 in the eresence of the
very same panchas i.e., PW.7 and Ashok Adappa Patiln
'"57
7
on 7.12.1998 between 2.38 pm., and 4.30 pm. The
said vehicle which was seized is marked as MO.2.
PW.8 who is also the investigation. officer Vin ethe
present case collected certified copy" of ?:he
judgment and conviction against the accused in crime "=
No.7/1996 in which the accuses His zsaid 'to "have
committed murder of the uncle of éw.1,'gh;ch=égé»5t,
Exs.P9 and 10. .k .b n .i_5 ,
5. It is the case of the ogoseeetion that the
PSI, PW;8*»gfi¢ fe§istered'"the§ complaint in Crime
No.190/1998' aoainsta the' accused for the offence
under Section. $C? CIR? "presented the same to the
_ePrincfipal~ JM?C,i Raibag and the said case was
"'~._rég;.si£;e;ééi. C.'C.No.672/1998. Thereafter, the
1éarfi¢§"~:n§cf Committed the same to the Sessions
Vh_Court; Belgaum, since the offence under Section 30?
~tftKiSntriahle by the Court of Sessions and the same was
'"Tnumbefed as SC.No.11/1999. The learned Sessions
.h*:fiud§e framed charges against the accused. The
h".4CaCcused pleaded not guilty and claimed to be tried.
'''''I
The prosecution examined in all 8 witnesses as PWs.1
tc: 8 and anarked. 11 documents as Exs.P1 .to-- ll ,and
also marked MOS.1 and 2.
6. In 313 statement the accnsed relied noon a
portin of the statement ,of §W-€ _made fibéforet the.
Poiice and also copy of the letter*add;éssed to the'
PSI, which were Exs,.rfi1_r 1v~('e':'~"..je:na..,.D2. lane" learned
Ses$ions.Judge after considering the contentions of
the learned Puolic :§rosecutorw and: learned Counsel
for them"-accused" 'and after appreciating the
documentar§_ and nerei. evidence adduced by the
prosecution;odbyV'judgfient dated 18.9.2001 held that
"xthe p$QSecution'has not established the guilt of the
d:accnsed. beyond reasonable doubt for the offence
pnnishanletgunder Section 307 IPC and accordingly
v_acquitted 'the accused of the offence punishable
ld*nnder Section 307 IPC. Being aggrieved by the same,
l,tne"§tate has come up in this appeal.
""7
10
as per the final order for the folloeing
reasons .
REASONS:
8. The learned Additional SPPa baa ataten usl
through the evidence.of Pflaii fioEB and the contents
of the documents got marked by the firosecution and
submit that the material on record eroves that the
accused andicomglaiant are diatantlt related to each
other, that flthere .iafi long" standing enmity between
the family of $oaaiain§§:'ahd the accused, that the
accused has "already =committed murder of two male
_Vmembera of thé.fami1y af complainant prior to 196Grs
.3 and has heenxconvicted for the said offence, that he
Qea*ftranaported" for life and having got the said
if' order_of»conviction affirmed in appeal has completed
R"" his fiail term. In this background, there is a long
Vlaistanding enmity and continuous fighting between the
"wnfltwd families, that on earlier several occaasiona
utthere were attempts made by the accused against the
'*7
11
other members of the family of complainant, that on
6.12.1998 at about 3.00 pm., near panchayath"Vo_f_fice
at Naslapur village the accused made aI'1'."<3;¥.t1'_4'£:'3V'!:.iv"{.£_:)'"tI-~:"-
deliver a blow upon PW.1 by means vMQ._1v,
with an intention to cause his.14dc_2aat1:1 and-. the
complainant escaped the blow..__aimed_"at ht.i's'f_he_ad,_:§ tvhejt.
accused could only damage rear"--sViiC1e motor
cycle and its name pzllatefl case of the
prosecution that PWs.2H_V_to_ léveis§}hc.'«..VVx§:elfe_'.'--~there at the
relevant point'°of." time have ."w:i--tn_e_ssed the act of
murder c.vo1rt:ni,ttled.i:':};7y. t--he--._'acc'used and the prosecution
has pro\}ed'--begronéi-»,reasiona--§:>le doubt the guilt of the
accused.
contrary, it. is the specific
conen'tiio'n':"'~o:f accused that PW.1 with a team of
witne-ssesv"andA being effectively assisted by PW.8,
ySI-10" Raibag Police Station has falsely tried
'prosecute him in this case. It is his further
that PW.1 collected the witnesses of not only
, nilis choice but also those people who are inimically
"I
12
dispossed towards the accused, that the" seid
witnesses are not only" interested to sn§port"dPW,ii
but also equally interested""»snd-I mores xdeeplyl
conspired against the accused.
10. On assesseent _ofhL the ilevidenoe, the
doucments, it is clear that enmin$V§etween the two
families i.e., .Patil,»faeil$denuihMedadum family is
not in disphte;ifthath hothj the; complaiant and
witnesses helengr to d§g{:;j--fémiiy' while accused
belong ;tomvflaeadu#flTfaeily"iswlalso not in dispute.
The docueentthatithexorosecution has relied upon is
Ex.P1,__certified_ copy *of the judgment in Criminal
J"A9peel*;No-6O/1§68p~' The contents of the said
ddocneent,elearly establishes the enmity between the
two.families,7 In the said case, the accused herein
'and his brother and one of their friend were accused
linnC€,No;24/1968, wherein they have faced the trial
.;r5: having murdered Mallangouda and Shamangouda, who
rdare none other than the uncles of PW.1. In the said
"proceedings, the accused herein, his brother and
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13
their friend were convicted for the offence iof
murder of the Mallangouda and Shamangouda, which was.
challenged in Criminal appeal No.60/1968iandLin the du
said proceedings the conviction order was oonfifmed
and in the said doucment there is_also details of,
another round of litigation between; V:fié" twod
families. In this backgrefind it is seen that the
enmity between the teo faeilies rnns hack to 70 to
80 years and it has green over a oassaee of time and
there is no chance of the same heing subsided down
the lane in" all ttnese: years. Hence, with this
background the trial Court has gone on to appreciate
the evidenoe of the Witnesses of Patil family with
'"vtmost*oare,and oaetion.
dil. 'lt-- is seen that PW.l, the complainant,
tPW.2eRda§oada Satgouda Patil, PW.3»Malagouda Patii,
':?W;éeAnnasab Malagouda Patil and PW.?~Mahaveer
_'_'1~_Ac3a<_:jou:da Patil belong to the Patil family and they
ad'are all related to each other and the accused
hbelongs to Magadum family which is at logger heads
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prosecution has failed to examine any independent
witnesses other than.the close relatives and friendsa
of PW.1, who are supportive of him,
12. It is also pointed out by the flougsel ford;
the accused about the inconsistencejfl"oetaeen the
complaint and the charge sheet; lit is the case of
the accused that the persons one Qgyaflnamed in the
complaint were not.arra$ed as erosecution witnesses
to support the E%a$g§u§isa,§§§; on material aspects.
It clearly. indicates nthat~~the prosecution had
predetermined its own aitnesses, namely PWs.2 to 7
in supports of ":55 "complaint of PW.1. It is
_specifically pointed out by the learned Counsel for
'uaccused lthatwrPW.5 in his crossmexamiantion has
admitted fihat he was working in the house of PW.1,
'il'that Hhe_ was? proceeding in the jeep, which was
'*?]*stopped vat the shop of PW.6, at that time both
Vx%ooaplainat, PW.1 and accused were quarrelling on the
x* road and PW.6, who is another eyemwitness is alleged
il',ito be a close associate of the Patil family having
'*7
16
associated with them in connection with election and
other activities, that he is also a_ friend ;of0
another person who is the complainant in anW¢arlier_ °
Case against the accused in SCtNo.i?£137?;=#hich was
again a false case implicated 'against tthe" acCnseflxL
under Section 307 IPC, except these twosfiitnesses,
the prosecution has ?not ,ekamined_ any "independent
witnesses who were either'reSidingzor working in the
said locality at the time of the alleged incident.
13., it his Valso_'interesting to notice that
seizure ?panchanafia,i.s§ot°--panchanama and panchanama
for taking custooy of the vehicle of the complainant
_have taken place at three different times i.e, 1) on
°.s§i2,i99é at 8,40 pm., 2) on 7.12.1998 at about 9.00
am,;.an¢fi3; og.v.12.199e between 2.30 and 4.30 pm.,
"i and Ato all ithe panchenamas it is ?W.7 and Ashok
"i:j*A&appa "Patil are the panchas. Interestingly the
Vx=said_4Esnok fihdappa ?atii is not included as
"*a§rosecution witnesses in the charge sheet.
t"w,i£ccording to the trial Court this also clearly
'47
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indicates the prosecution is trying to falsely
implicate the accused in this case. Further thekeey
in which the complaint was lodged 13- alsglhhighlyh
suspicious for the reason that_ the lcoeplainantl
states that after the incident teok §laCe'he3weht
home, had deliberations; *discussion gwithg other *
members of Patil family, thereafter decided to lodge
a complaint in Raihegf"Eolieei"3te£ion against the
accused and accordingl,y,._i--.heV__flal.o'ngl"i§xi.th his family
members went to the Rhihag police station and lodged
a complaintiu Jl
14. In theVV"ihetan'tt,'case, though the time gap
_betweeh the alleged time of incident and the time of
l?_filing comolaint is only three hours, considering
the nature of the evidence and the time taken by the
id" comolainent to go to his house, sit leisurely, have
l"* discussion with his family members regarding the
R=.fidde_ih which they have to proceed in the matter and
"-rlthereafter filing the complaint at 6.00 pm., that
ll',,flthe SHO apprehending the accused near Naslapur bus
wt?
18
stand on the same day at 8.30 pm., with the same
stick with which he alleged. to have attem§tedd'to
commit murder of the complainant and beihg airested%
by pew, as rightly pointed }:>y_,..th_e trial'-:'_§:aim;'..Vtse""
said sequence of event does not appear to be cogent
and acceptable as normal<:sequen$es oft eyehtsj and 7
thus gives room for a doubt that it iaha clear case
of premeditated act by the pfosecation. Further in
respect of the number iof lfilows;ithat3 the accused
aimed at the; head of gthe"=cofiplaihant is also a
matter of debate and"doubt considering the evidence
of complainant aad also the eye~witnesses, PWs.2 and
3. All *thesel_clearly indicates that there is
_inconsistency Hat' every stage as to the actual
lgihcident and also the way in which the incident is
stated to have been done.
"$5., It his clear on appreciation of the above
~Ajfhsaidy material on record and also the evidence
'*adduceo by the prosecution, it would not in any way
R*.hel§ the prosecution to prove that there was an
""1
19
atempt by the accused to assault and cause injury to
the complainant or commit murder. it is_cleargf:eme
the evidence of PWs.1 to '7 and that ~ef]fPW§$ flth%fiuua
there is no consistency between the statements Qith
each one of them made »before% the SHDliandh the7
.', " V V_ «V u4ks~' '
evidence that they have adduced before eififiiycourt
I---'§
below. The documents gm re§¢f§;§5g;d show the long
standing enmity betweehlithel to which
the complainant_heionqs to a§af;h§t~eE the family of
Magadmn to yhiqh the accused belongs and that the
entire incident apgears to be Qremeditated event.
16. It his "weil'.settled that, it is for the
prosecution tag prove all the facts against the
hvaccusedl heyone reasonable doubt. In the present
case, hafiing regard to the above said material on
i v.record it ie glear that, the only finding that could
t,,be_arrivealat is that the prosecution has failed to
l' peeve hthe guilt of the accused. Therefore, the
'i»_finfling of acquittal arrived at by the trial Court
lcannot be said to be a finding, which could not be
"7
nae-
arrived at having regard to the material on record{"
Infact, the only inference :that» eoeid the fdrafin
having regard to the above,said7material on record 2
is that the prosecution has feiiéu to-éiofi8fl§Uilt of
the accused. Accordisglyg ee eplg that the finding
of acquittal arrived Vat leg? tea f;rail Court is
justified and dees.no% oall'§or interference in this
appeal. Accorainglfil we ansger point No.1.
17fl_§gi§t%§g%§; kin View of the our answer to
point NOgifl We an§e§::§§ih£ No.2 by holding that the
appeal;i$_de§oi¢ of mertis and the same is liable to
ngbe-diseissed}e Accoroingly, we pass the following:
ORDER
x'TnevNappeal is dismissed. The judgment of "Pp _acgqittal passed by the Sessions Judge at Belgaum in H'? '4'?
2} Sessions Case No.11/1999 dated 1a.9.2ceia x;s confirmed.
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