Karnataka High Court
Mahesh vs The State Of Karnataka on 15 December, 2020
Bench: B.Veerappa, K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.998 OF 2016
BETWEEN:
1. MAHESH
S/O. CHOWDA REDDY,
AGED ABOUT 29 YEARS,
2. RAVI
S/O. YALLAPPA,
AGED ABOUT 31 YEARS,
3. MUNIRAJU
S/O. VENKATARAYAPPA,
AGED ABOUT 29 YEARS,
4. LACHAMMA
W/O. LATE NAGAPPA,
AGED ABOUT 71 YEARS,
ALL ARE RESIDING AT
BASAVAPATNA VILLAGE,
SIDLAGHATTA TALUK - 564 105.
... APPELLANTS
(BY SRI M.T. NANAIAH, SR. COUNSEL ALONG WITH
SRI PRABHUGOUD B. TUMBIGI, ADV FOR A1, A3 AND A4;
SRI T.A. BASAVARAJU, ADV., FOR A2.)
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AND:
THE STATE OF KARNATAKA
BY SIDLAGHATTA RURAL POLICE,
SIDLAGHATTA,
CHIKKABALLAPURA DISTRICT,
REPRESENTED BY S.P.P.,
HIGH COURT,
BENGALURU - 560 001.
... RESPONDENT
(BY SRI VIJAYAKUMARA MAJAGE, ADDL.S.P.P.)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS
374(2) OF THE CRIMINAL PROCEDURE CODE, 1973, PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER DATED 7-6-2016
AND 9-6-2016 PASSED BY THE II ADDITIONAL DISTRICT AND
SESSIONS JUDGE, CHICKBALLAPUR (SITTING AT CHINTAMANI)
IN S.C.No.39/2015-CONVICTING THE APPELLANTS/ACCUSED
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 448 AND
307 READ WITH SECTION 34 OF THE IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 01-12-2020 AND COMING ON
PRONOUNCEMENT THIS DAY, B. VEERAPPA, J., DELIVERED
THE FOLLOWING:
JUDGMENT
The accused have filed the present appeal against the impugned judgment of conviction and sentence dated 07.06.2016 made in S.C.No.39/2015 on the file of the II Additional District and Sessions Judge Chickballapura, (sitting at Chintamani) (for short 'trial 3 Court') convicting the accused for the offence punishable under Sections 448 and 307 read with Section 34 of Indian Penal Code (for short 'IPC') to undergo imprisonment for one year and life respectively with fine of Rs.500/- and Rs.40,000/- each with default clauses.
2. The case of the prosecution is that on 13.06.2014 at about 3 p.m., complainant-Ravi Kumar B.P., S/o. Poojappa lodged a written complaint alleging that about eight years back his brother-Narasimhappa got married with Pavithra of Kadaripura village, Chintamani Taluk. He and his brother were residing separately. His brother is having two male children. His mother is residing with his brother-Narasimhappa. As such, his sister-in-law had illicit relationship with her neighbour Mahesh-accused No.1. One day his mother Gangamma-PW.3 saw her daughter-in-law with accused No.1 together and advised Pavithra to change her 4 attitude and instructed her not to entertain Mahesh- accused No.1. In spite of repeated instructions, she continued the same. Later Panchayath was convened with the help of elders to settle the issue in the village. Thereafter, his brother and his sister-in-law went to their parental house at Kadaripura. There also she continued the illicit relationship with accused No.1. In this regard his mother-Gangamma was abusing accused No.1 that he has spoiled her family. It is further case of the prosecution that one week prior to the incident, accused No.1 and accused No.4-Lachamma both quarreled with PW.3-mother of the complainant and accused No.4 instigated her son-accused No.1 to kill PW.3. On 12.06.2014 in the midnight about 12.45 a.m., when the mother of the complainant was sleeping by opening the door of the house, the accused persons trespassed inside the house with an intention to commit murder of PW.3-Gangamma. Accused Nos.3 and 4 caught hold of his mother and accused No.1 assaulted 5 PW.3-Gangamma with machu and accused No.2 assaulted with pickaxe on the head, nose, hands and legs of his mother and caused grievous injuries.
3. After hearing the noise of the quarrel, complainant himself and Narasimhamurthy came to the spot. By seeing them, the accused persons ran away from the spot. Thereafter, they took their mother to the Shidlaghatta Government Hospital and from there they took her to Victoria Hospital, Bengaluru. Thereafter, PW.8-Ravi Kumar lodged a complaint to take action against the accused persons. On the basis of the said complaint, the Jurisdictional Police registered a case in Crime No.164/2014 for the offence punishable under Sections 448 and 307 read with Section 34 of IPC against the accused persons. The Jurisdictional Magistrate took cognizance for the alleged offences and committed the case to the Principal District and Sessions Judge, Chickballapura for trial. After hearing 6 both the parties, the learned Sessions Judge framed the charges, read over and explained to the accused, they pleaded not guilty and claimed to be tried.
4. In order to prove the case of the prosecution, the prosecution in all examined 12 witnesses as per PW.1 to PW.12, marked 13 documents as per Ex.P.1 to Ex.P.13 and marked 7 Material Objects as per M.O.1 to M.O.7. After completion of the evidence of prosecution witness, the learned Sessions Judge recorded the statement of the accused under Section 313 of Cr.P.C. The accused persons denied all the incriminating evidence against them but, they did not choose to adduce any defence evidence.
5. After hearing the arguments of the parties, the learned Sessions Judge formulated three points for consideration. After considering both oral and documentary evidence on records, the learned Sessions Judge recorded the finding that the prosecution proved 7 beyond reasonable doubt that PW.3-Gangamma had advised accused No.1 for having illicit relationship with her daughter-in-law and therefore on 12.06.2014 in the midnight about 12.45 a.m., at Basavapatna village all the accused persons in furtherance of their common intention to commit the murder of PW.3-Gangamma, when she was sleeping by opening the door of the house, the accused persons trespassed into the house and thereby committed the offence under Section 448 read with Section 34 of IPC. The learned Sessions Judge further recorded the finding that the accused persons in furtherance of their common intention to murder PW.3-Gangamma trespassed into the house and accused Nos.3 and 4 caught hold PW.3 and accused No.1 assaulted with Machu on her head, nose, two hands and legs and accused No.3 assaulted with pickaxe on two legs of PW.3 and caused grievous injuries and attempted to commit murder and thereby, committed offence under Section 307 read with Section 8 34 of IPC. Accordingly, learned Sessions Judge convicted and sentenced all the accused persons to undergo simple imprisonment for one year and to pay fine of Rs.500/- each and in default to the payment of fine, they shall undergo simple imprisonment for one month for the offence punishable under Section 448 read with Section 34 of IPC and to undergo life imprisonment and to pay fine of Rs.40,000/- each and in default to the payment of fine, they shall undergo simple imprisonment of two years for the offence punishable under Section 307 read with Section 34 of IPC. Hence, the present appeal is filed.
6. Heard the learned counsel for the parties.
7. Sri M.T. Nanaiah, learned Senior counsel for accused Nos.1, 3 and 4 has contended that the impugned judgment and order of conviction passed by the trial Court, convicting the accused persons is contrary to the material on record and the same cannot 9 be sustained. He would further contend that none of the prosecution witnesses deposed anything about accused Nos.3 and 4. Therefore, the order of conviction passed by the trial Court cannot be sustained. He would further contend that the alleged incident occurred on 12.06.2014 at midnight about 12.45 a.m., in the dark. Since the incident occurred during the midnight, PW.3-Gangamma couldn't identify the accused persons as there was no electricity. The prosecution has not proved and established the motive for the alleged attempt murder against PW.3. He would further contend that the husband of PW.3 was not examined to prove the motive. The prosecution has not examined Narasimhappa and Pavithra who are the husband and wife, though complaint has been lodged with regard to illegal relationship between Pavithra and accused No.1. On that ground alone, the impugned judgment of conviction passed by the trial Court cannot be sustained.
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8. Learned Senior counsel has further contended that PWs.5 to 9 who are the eye witnesses and seizure mahazar witnesses turned hostile. They have not deposed that there was electricity on the day of incident. He would further contend that PWs.10, 11, 12
- the Police Officers who deposed on behalf of the prosecution have neither whispered about the illicit relationship between accused No.1 and Pavithra nor collected any material including call details between Pavithra and accused No.1 to prove their illicit relationship. He would further contend that though the incident occurred on 12.06.2014 at 12.45 a.m., in the midnight, the statement of PW.3/injured was recorded only on the 02.12.2014 after lapse of six months and the same is fatal to the case of the prosecution. The incident stated by PW.3-injured has not been proved by the prosecution or produced the evidence of Police Officers, documents and no eyewitnesses are examined 11 to prove the alleged assault by the accused persons on PW.3.
9. The learned senior counsel for the accused would further contend that PWs.4, 6, 8 and 9 are all eyewitnesses have not supported the prosecution case with regard to the identification of the accused persons for being assaulted PW.3. He would further contend that the evidence of the witnesses are not only trustworthy but also not dependable or reliable and on the said ground alone, the appellants-accused persons are entitled to get the benefit of doubt. He would further contend that the entire case of the prosecution is only based upon the assumption and presumption. The said material aspects have not been considered by the learned Sessions Judge, therefore, sought to allow the appeal.
10. Sri T.A. Basavaraju, learned counsel for accused No.2 has contended that PW.5- 12 Narasimhamurthy who is the neighbour of PW.3 and C.W.2-Poojappa, husband of PW.3 were not examined. He would further contend that the injured witness deposed that four persons entered the house and not disclosed the names of the accused persons before the Court nor identified the accused persons but, she has identified M.Os.1 to 5. She was not in conscious for eight months after the incident. He would further contend that PWs.4, 6 and 9 are neighbours who are the hearsay witnesses turned hostile. PW.8-Ravikumar son of PW.3-Gangamma/injured who is the complainant also turned hostile.
11. Learned counsel further contended that PW.1-Dr. Bhuvaneshwari has stated on oath that Injury Nos.1 and 5 are simple in nature and Injury Nos.3, 4, 7 to 11 are grievous in nature. Ex.P.1 is the wound certificate issued by PW.1. No particular overtact against accused No.2 for being advised by PWs.2, 4 and 13 5 who are panchayatdars. PW.4 has partly supported the prosecution case and PW.9 turned hostile. He would further contend that the blood stain in M.Os.1 to 5 pertains to 'A' Group. Ex.P.8 depicts that the blood group of PW.3-Gangamma is 'A' Negative. There is no recovery from accused No.2. Ex.P.4-Spot Mahazar drawn in the presence of PWs.2 and 5. Though PW.2 supported the prosecution case, but PW.5 turned hostile. Absolutely, there is no evidence against accused No.2 proved by the prosecution beyond reasonable doubt, therefore, sought to allow the appeal.
12. Per contra Sri Vijayakumar Majage, learned Additional SPP while justifying the impugned judgment and order of conviction has contended that PWs.3 and 4 in the cross-examination specifically stated against accused No.1 with regard to motive as accused No.1 had illicit relationship with Pavithra/daughter-in-law of PW.3. He would further contend that PW.4 identified 14 M.Os.1 and 2 - Machu and Axe used by accused Nos.1 and 2 for the offence and the same was supported by PW.2. Though PWs.5 and 7 turned hostile, the prosecution proved beyond reasonable doubt that accused Nos.1 and 2 have involved in the alleged attempt murder of PW.3. He would further contend that M.Os.1 and 2 is the subject matter of Ex.P.7-FSL report and materials examined and marked as per Sl. Nos.1 to 6 are:
1. One Machu
2. One Gudli
3. One Pillow
4. One Plastic chape
5. Blood stain cement soil
6. Sample cement soil
13. The opinion expressed by the Scientific Officer is that the presence of blood stain was detected in Item Nos.1, 2, 3, 4 and 5. Ex.P.8-Blood Group 15 Report issued by the concerned Medical Technician clearly depicts that the blood group of PW.3-Gangamma is 'A'-Negative. He would further contend that though PW.8-complainant has turned hostile but in Ex.P.1-
wound certificate, the names of accused Nos.1, 2 and 3 are mentioned and there is no reference to accused No.4 though Ex.P.9-complaint depicts all the names of the accused persons. In the cross-examination of PW.1- Doctor, has accepted that the injuries shown in Ex.P.1 are separate injuries and due to the said injuries there was lot of bleeding. Ex.P.2-Medical report of NIMHANS clearly depicts that some known people have assaulted PW.3. In fact, he has contended that actually PW.3 was assaulted by accused Nos.1 and 2, therefore, he would further contend that the prosecution has proved beyond reasonable doubt for the allegation made against the accused in the charge memo. Therefore, he sought to dismiss the appeal.
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14. In view of the aforesaid rival contention urged by the learned counsel for the parties, the points that arise for our consideration are:
"1. Whether the learned Sessions Judge is justified in convicting the accused for the offence under the provisions of Sections 448 and 307 read with Section 34 of IPC with fine in the facts and circumstances of the present case?
2. Whether the accused have made out a case to interfere with the impugned judgment of conviction passed by the Sessions Judge in the facts and circumstances of the case?"
15. Upon hearing the rival contention of the learned counsel and in order to re-appreciate the evidence on record, it is necessary to have a cursory look into the evidence adduced by the prosecution witnesses before the trial Court which is as under:
(a) PW.1-Dr.Bhuvaneshwari has deposed that the injured-PW.3 was examined and found certain 17 injuries on her and stated that there are pressed injuries and the injury Nos.3, 4, 7 to 11 are grievous in nature and injury Nos.1 and 5 are simple in nature.
Ex.P.1 is the wound certificate and Ex.P.2 is the certificate issued by the NIMHANS in support of the prosecution case.
(b) PW.2-Chikkappaiah is the witness to the spot mahazar-Ex.P.4 and identified M.O.1-Machu and M.O.2-Axe. He supported the case of the prosecution.
(c) PW.3-Gangamma, injured mother of PW.8- Ravi Kumar deposed that in the midnight between 12.30 a.m., to 1.00 a.m., when she and her husband- Poojappa was sleeping by opening the door as it was very hot, four accused persons entered the house and assaulted her on the head, nose, hands and legs with sickle. She further deposed that accused No.1 and Pavithra was seen together having illicit relationship and in that regard there was panchayath in the village. 18 She also deposed with regard to her treatment and identified M.Os.1 to 5 with which she has been assaulted. She supported the case of the prosecution.
(d) PW.4-Venkatappa has deposed that he knew PW.3-injured Gangamma and accused persons. PW.8- son of injured called him stating that his mother was assaulted by the accused persons and he saw that the PW.3 sustained grievous injuries and she was shifted to Shidlaghatta Government Hospital by ambulance. He also deposed with regard to illicit relationship between accused No.1-Mahesh and Pavithra/daughter-in-law of PW.3. He supported the case of the prosecution.
(e) PW.5-Narasimhamurthy has deposed that he knew PW.8-Ravikumar and PW.3-Gangamma. He further deposed that he has no knowledge about the assault made on PW.3-Gangamma. The statement was marked as Ex.P.4(b) and further stated that it was dark 19 when the incident was occurred and he was treated as hostile.
(f) PW.6-Muniraju also deposed that he knew PW.8-Ravikumar, PW.3-Gangamma and the accused persons. He further deposed that he had no knowledge about the assault made on PW.3. The Police have not recorded his statement. The statement was marked as Ex.P.6. He was treated as hostile.
(g) PW.7-Muthappa also not supported the case of the prosecution with regard to the seizure of M.Os.1 to 5 as per Ex.P.4-Spot Mahazar and he was treated as hostile.
(h) PW.8-B.P.Ravikumar - complainant has deposed that he came to know that his mother PW.3- Gangamma was assaulted by somebody and she was shifted to the hospital for treatment. He further stated that his mother informed him that she was assaulted by 20 four accused persons. Ex.P.9 is the complaint. The statement of PW.9 before the Police is marked as Ex.P.10. He was treated as hostile and he is not the eyewitness but, he is only the hearsay witness and has not supported the case of the prosecution.
(j) PW.9-Byregowda has deposed that he knew accused as well as injured-PW.3 and stated that he has no knowledge about the assault made on PW.3 as it was dark and no light. When he went to the hospital, he saw that there was bandage on the hands of PW.3- Gangamma. The statement was marked as Ex.P.10. He was treated as hostile and not supported the case of the prosecution.
(k) PW.10-P.B.Hanumanthappa, Police Sub- Inspector, Chintamani Rural Police Station has deposed that he received information from Head Constable on 13.06.2014 about the incident. He went to the spot and drawn the spot mahazar as per Ex.P.4. He seized 21 M.Os.1 to 7. Accused No.4-Lachamma was arrested from their house. On 15.04.2014, Poojappa-husband of injured-Gangamma, PW.9-Byregowda and PW.4- Venkatappa were examined. Later, on 03.07.2014, he handed over the case for further investigation to his successor.
(l) PW.11-Kadiripathy, Assistant Sub-Inspector has deposed that when he was working as Head Constable, on 13.06.2014, PW.8 lodged a complaint before him stating that his mother has been assaulted by four persons and registered a case in Crime No.164/2014 for the offence punishable under Sections 448 and 307 read with Section 34 of IPC and the same was forwarded to the Superiors. Ex.P.12 is the FIR. He supported the case of the prosecution.
(m) PW.12-Liyakath Ulla, Police Sub-Inspector took charge on 04.07.2014. On 18.07.2014, he sent M.Os.1 to 4, 6 and 7 to the FSL for examination. 22 Further, the blood group of PW.3-Gangamma was also obtained with the medical report as per Ex.P.8 which shows 'A' Negative and filed a final report. He supported the case of the prosecution.
16. Based upon the aforesaid oral and documentary evidence on record, the learned Sessions Judge proceeded to convict the accused persons for the charges framed against them.
17. This Court being the First Appellate Court in order to re-appreciate the entire material on record, it is relevant to consider the prosecution witnesses i.e., PW.1-Dr. Bhuvaneshwari who has stated that she examined PW.3-Gangamma on 11.06.2013 at about 1.00 p.m., The victim was brought to the hospital on the history of assault made by accused Nos.1 to 3 with long, knife, sickle and axe. On examination, she found the following injuries sustained by PW.3: 23
"1) A lacerated injury of head extending from left side of forehead to vertex of head and temporoparietal region. Wound sutured in layer.
2) A linear lacerated injury over right leg anteriorly 1 cm x 1 cm wound sutured in layer.
3) A linear lacerated injury over left leg posteriorly 2 cm x 1 cm wound sutured.
4) A lacerated injury over left leg anteriorly 1 cm x 1 cm wound sutured.
5) Swelling of both lower limbs extending from knee joint to ankle joint.
6) A cut injury posteriorly over right arm ½ cm reddish.
7) A lacerated injury over nasal bridge fracture of nasal bone.
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8) A lacerated injury over right knee joint anteriorly 1 cm x 1 cm reddish. Wound sutured in layer.
9) A lacerated cut injury over right wrist joint anteriorly ½ cm x ½ cm wound sutured.
10) Swelling with tenderness over right wrist joint with swelling over right hand fingers.
11) Loosening of 2 upper incisor and canine tooth."
She further stated that the injury Nos.3, 4, 7 to 11 are the grievous in nature and injury Nos.1 and 5 are simple in nature.
18. It is stated in the complaint-Ex.P.9 by PW.8 that his brother Narasimhappa married his sister-in-law about eight years back and they have two male children. His mother PW.3-Gangamma was also staying with his brother Narasimhappa. Mahesh-accused No.1 was residing adjacent to the house of his brother- 25 Narasimhappa. When things stood thus, since four years when his brother was not in the house, Mahesh- accused No.1 and Pavithra-wife of Narasimhappa used to have illicit relation and the same was seen by his mother-PW.3 and PW.3 advised her daughter-in- law/Pavithra to change her attitude and instructed accused No.1 to behave properly. In spite of repeated advice, they continued their illicit relation. In view of the advice from his mother, his sister-in-law went to her parental house at Kadaripura. Then, panchayath was held in the presence of elders at Kadaripura and Pavithra came back from her parental house after panchayath. In spite of the advise, again both continued their illicit relation and therefore, PW.3 used to abuse accused No.1 that he spoiled their family and there was quarrel between PW.3 and accused No.4-Lachamma. Accused No.4 encouraged her son accused No.1 to finish off PW.3. Accordingly, on 12.06.2014, in the midnight at about 12.45 a.m., when the door was open 26 as it was very hot, accused No.1 along with other accused persons trespassed inside the house with an intention to commit murder of PW.3-Gangamma. Accused Nos.3 and 4 caught hold of his mother and accused No.1 assaulted PW.3-Gangamma with machu and accused No.2 assaulted with pickaxe on the head, nose, hands and legs of his mother and caused grievous injuries. PW.2 who is the witness to the spot mahazar and recovery of M.O.1 and M.O.2 stated that PW.8 informed him that the accused persons had assaulted his mother and he has stated in the cross-examination that he does not know as to what has written in Ex.P.4. PW.3-Gangamma has stated in the examination-in-chief that on the unfortunate faithful day in the midnight, accused persons entered the house, when she opened her eyes, the accused persons forcefully assaulted on her head and when she tried to scream they assaulted on her nose and when she tried to fight with her hands, 27 they assaulted on her hands and they used M.Os.1 and 2 to assault on her legs.
19. She further stated that prior to two to three months, she has seen accused No.1 and her daughter- in-law together in the cow shed and she quarreled with her daughter-in-law with regard to illicit relation. Therefore, her son and daughter-in-law went to Kadaripura. In that regard, there was panchayath in the village. PW.4 and 9 are the panchayatdars. She further stated that when her daughter-in-law and son went to Kadaripura, the accused No.1 went to Kadaripura and quarrelled with Pavithra. Due to the quarrel, the Police called accused No.1 and PW.3 to the station and there was a compromise. She had been in the hospital for more than eight months as in-patient for injuries sustained and she identified M.Os.1 and 2 used by accused Nos.1 and 2. She further stated in the cross-examination that she does not know whether the 28 Police had come to the M.V.G Hospital or not. She has also stated that there are adjacent houses near her house. She further admitted in the cross-examination that Byregowda, Venkatappa and Muniraju belong to the congress party and the accused persons belong to the Janata party. She denied the suggestion that the accused persons belong to the Janata party. She also admitted that herself, her family members are cordial with Byregowda, Venkatappa and Muniraju and she denied the statement that the accused persons never entered the house or assaulted her.
20. PW.4 has deposed that he knew PW.3 and accused persons that about one year back at about 12.00 a.m., in the mid night, PW.8 called him through phone and stated that the accused persons have assaulted PW.3. When he went to the spot, he saw that the PW.3 sustained grievous injuries i.e., on head, nose, hands and both legs were cut. He came to know that 29 since there was illicit relationship between accused No.1 and Pavithra, there was panchayath at Santhekallahalli near 'H' cross, then after three months, Pavithra went to her native place. Accused No.1 has agreed before the Police that he will not continue the illicit relation with Pavithra. When he went to the spot, he has seen M.Os.1 and 2. He has admitted that PW.8-complainant and he belong to the same village. He has also admitted that himself, Byregowda and Venkatappa belong to the Congress party and the accused persons belong to the Janata party. He had denied the suggestion that accused No.4 has stated that at any cost PW.3 should be finished.
21. The material on record clearly depicts that none of the prosecution witnesses deposed anything about accused Nos.3 and 4. In the absence of oral and documentary evidence against accused Nos.3 and 4, the impugned judgment of conviction passed by the learned 30 Sessions Judge cannot be sustained. It is the evidence of PW.3 that the accused persons on 12.06.2014, in the midnight between 12.30 a.m., to 1.00 a.m., entered the house, when she and her husband-Poojappa was sleeping by opening the door as it was very hot. Admittedly, the husband of PW.3-Poojappa was not examined by the prosecution. It is also not in dispute that the allegations made against the daughter-in-law of PW.3 who had married her son and out of their wed- lock, they have two male children. The complaint lodged by PW.8 that the accused persons having ill-will with PW.3 as PW.3 saw accused No.1 and her daughter- in-law in the cow shed having illicit relationship. But very strangely either Narasimhappa or Pavithra who are husband and wife have not been examined. Though in the complaint and in the evidence of prosecution witnesses, the illicit relationship between Pavithra and accused No.1 alleged. It is also not in dispute that PW.5-Narasimhamurthy, PW.6-Muniraju, PW.7- 31 Muthappa, PW.8-Ravikumar and PW.9-Byregowda who are mahazar witnesses and panchayatdars turned hostile. They have not deposed that there was electricity on the day of incident. The evidence of PW.10- Hanumanthappa, Police Inspector, PW.11-Kadiripathy, Assistant Sub-Inspector and PW.12-Liyakath Ulla, Police Sub-Inspector who are all official witnesses have not whispered about the illicit relationship between accused No.1 and Pavithra nor collected any material including call details to prove the illicit relationship between accused No.1 and Pavithra.
22. It is also not in dispute that though the incident occurred on 12.06.2014 at about 12.45 a.m., but the statement of the injured-PW.3 recorded by the Police under Section 161 of Cr.P.C., on 02.12.2014, after lapse of six months and the same has not been explained by the prosecution. On that ground alone, the impugned judgment and order of conviction passed 32 by the trial Court against accused Nos.3 and 4 cannot be sustained. Though PW.3 has stated in the examination-in-chief that the accused persons entered her house, but she has not deposed the names of the accused and also not identified the accused who used M.Os.1 and 2. In the complaint, it is stated that M.O.1 was used by accused No.1 and M.O.2 was used by accused No.2. PW.4 who is the panchayatdar has partly supported the case of the prosecution. PW.9 has not supported the case of the prosecution. Ex.P.4 is the spot mahazar drawn in the presence of PWs.2 and 5. PW.2 has supported the case of the prosecution but, PW.5 has turned hostile. M.Os.1 to 5 i.e, Machu, Axe, Mat, Pillow and Pieces of Bangles contain the blood stain belong to 'A' group and Ex.P8-Blood group report of PW.3-Gangamma depicts 'A' Negative. It is also not in dispute that Ex.P.7-certificate issued by the Scientific Officer, FSL, Bengaluru and examined the material as: 33
1) One Machu
2) One Gudli
3) One Pillow
4) One Plastic Chape
5) Bloodstain cement soil
6) Sample cement soil The opinion given by the Scientific Officer on items, i.e., 1-Machu, 2-Gudli, 3-Pillow, 4-Plastic chape and 5-Bloodstain cement soil, were stained with human blood with 'A' group. The evidence of PW.1-doctor, Ex.P.1-wound certificate and FSL report clearly depicts that the blood group of PW.3-Gangamma is 'A' Negative which supports the prosecution case.
23. The evidence of PW.1-Dr. Bhuvaneshwari clearly depicts that PW.3-Gangamma was admitted to Shidlaghatta Government Hospital with the history of assault by accused Nos.1, 2 and 3 with long, knife, sickle and Axe. Though, the original complainant 34 turned hostile, PW.3-victim who stated on oath that accused Nos.1 and 2 assaulted her on head, nose, hands and legs with the use of M.Os.1 and 2. PWs.3 and 4 specifically stated about the motive to assault PW.3. Hence, the evidence of PW.3 depicts that accused No.1 is involved in the commission of the offences punishable under the provisions of Sections 448 and 307 read with Section 34 of IPC. Taking into consideration that non-examination of Poojappa-the husband of PW.3 who was in the house on the day of incident and non- examination of either Narasimhappa- son of PW.3 nor his wife-Pavithra against whom the allegation was made by PW.8-complainant that accused No.1 had illicit relationship with Pavithra has not been examined. The evidence of prosecution witnesses clearly depicts that there was panchayath held before the Police and in the village for both accused No.1 and Pavithra to change their attitude. But they continued their illicit relationship. Because of advise made by 35 PW.3 and she has seen both accused No.1 and her daughter-in-law together in the cow shed, the accused might have developed animosity against PW.3 but, the material facts clearly depicts that there was no intention to murder PW.3.
24. Learned Sessions Judge has recorded a finding that no doubt these material witnesses to prove that there is illicit relation or motive of the accused. PW.3-Gangamma has deposed that she has sustained injuries due to the assault made by the accused persons. When PW.3-Gangamma deposed regarding the incident and injuries sustained, non-examination of her son Narasimhappa and daughter-in-law Pavithra is not fatal to the case of prosecution. Even not supporting the case of the prosecution by PWs.6, 8 and 9 also not fatal to the case of the prosecution, when other witnesses inspire the confidence of the Court that these accused persons have committed offence and there is no 36 reason to disbelieve the evidence of PW.3 who is the injured eye-witness. Therefore, the said finding by learned Sessions Judge with regard to attempt murder cannot be said to be without any basis. But on careful perusal of both oral and documentary evidence i.e., prosecution witnesses and material documents produced clearly depicts that the accused Nos.1 and 2 have involved in the assault on PW.3 who was in the hospital for more than eight months. Though the incriminating evidence adduced by the prosecution with regard to assault by accused Nos.1 and 2 has not been explained by accused Nos.1 and 2 in their 313 Cr.P.C., statement which is of total denial. As already stated above, in view of the evidence of the doctor, wound certificate, evidence of PW.3 and evidence of Police officers who recovered M.Os.1 to 7 at the instance of the accused clearly depicts that accused Nos.1 and 2 have assaulted PW.3. Ex.P.1-wound certificate clearly depicts that injury Nos.3, 4, 7, 8, 9, 10 and 11 are grievance in 37 nature and injury No.1 is simple in nature and the doctor has opined that the patient has totally lost a large amount of blood and was in shock with B.P. of 90/40 mmHg. PW.10-Police Sub-Inspector visited the spot on 13.06.2014 along with Venkataramana-Police Constable and Padma-woman Police Constable. PW.5- Narasimhamurthy, neighbour of PW.3 showed the spot. Panchanama was drawn in the presence of PW.2- Chikkappaiah and PW.7-Muthappa and recovered M.Os.1 and 2 and nothing has been elicited in the cross-examination.
25. PW.11-Kadiripathy, Assistant Sub-Inspector who registered a complaint against the accused persons and recorded the statement of PW.8 and nothing has been elicited in the cross-examination. PW.12-Liyakath Ulla, Police Sub-Inspector continued further investigation and sent M.Os.1 to 4, 6 and 7 to FSL, Ex.P.8-Blood group report and nothing has been elicited 38 in the cross-examination. In view of both oral and documentary evidence clearly depicts that accused Nos.1 and 2 have involved in the assault of PW.3. Therefore, in view of the facts and circumstances of the present case, the offence clearly falls under the provisions of Section 448 and 326 read with Section 34 of IPC and not under the provisions of Section 307 of IPC. The said aspect has not been considered by the learned Sessions Judge, thereby, proceeded to pass impugned judgment and erroneous order by convicting accused Nos.1 to 4 under the provisions of Section 307 which required to be modified. Absolutely there is no material against accused Nos.3 and 4. Therefore, the impugned judgment and order of conviction convicting accused Nos.3 and 4 cannot be sustained and in so far as accused Nos.1 and 2 are concerned, the prosecution has established the charges beyond reasonable doubt that they have involved in the assault on PW.3 by using M.Os.1 and 2 and the injuries sustained by PW.3 as per 39 the evidence of PW.1 and wound certificate are all grievous in nature, except injury No.1 which is simple in nature. Therefore, accused Nos.1 and 2 are liable to be convicted under the provisions of Sections 448 and 326 of IPC read with Section 34 of IPC.
26. For the reasons stated above, the point No.1 and 2 raised in the present appeal is answered in the partly affirmative holding that the learned Sessions Judge has not justified in convicting accused Nos.1 to 4 for the offence under Section 307 read with Section 34 of IPC and the accused persons have made out a case to interfere with the impugned judgment of conviction for the offence punishable under Section 307 of IPC and the same is modified into Section 326 read with Section 34 of IPC against accused Nos.1 ad 2 and accused Nos.3 and 4 have made out a case that the impugned judgment of conviction made against them cannot be sustained under the law.
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27. Hence, we proceed to pass the following:
ORDER
(i) Criminal Appeal is allowed in-part.
(ii) The impugned judgment of conviction and sentence passed by the II Additional District and Sessions Judge Chickballapura, (sitting at Chintamani) in S.C.No.39/2015 dated 07.06.2016 convicting accused Nos.3 and 4 for the offences punishable under Sections 448 and 307 read with Section 34 of IPC, is hereby set aside. Accused Nos.3 and 4 are acquitted for the charges leveled against them.
(iii) The impugned judgment of conviction in so far as convicting accused Nos.1 and 2 for the offences punishable under Sections 448 and 307 read with Section 34 of IPC is hereby modified.
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(iv) Accused Nos.1 and 2 are convicted for the offences punishable under Sections 448 and 326 read with Section 34 of IPC. They are sentenced to undergo imprisonment for one year and to pay fine of Rs.1,000/- each and in default of payment of fine, to undergo imprisonment for one month for the offence punishable under Section 448 read with Section 34 of IPC; and to undergo imprisonment for five years and to pay fine of Rs.60,000/- each and in default of payment of fine, to undergo further imprisonment for one year for the offence punishable under Section 326 read with Section 34 of IPC.
(v) All the sentences shall run
concurrently.
(vi) Accused Nos.1 and 2 are entitled to the benefit of set-off as contemplated under Section 428 of Cr.P.C.
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(vii) In exercise of the powers under Section 357(3) of Cr.P.C., out of the fine amount, a sum of Rs.1,20,000/- shall be paid to PW.3-Gangamma as compensation.
Sd/-
JUDGE Sd/-
JUDGE GBB