Karnataka High Court
The State Of Karnataka vs Lagammappa Mutteppa Dummanaik on 14 February, 2017
Bench: Anand Byrareddy, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2017
PRESENT
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
AND
THE HONOURABLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL No.2737 OF 2013
Between:
The State of Karnataka,
Through PSI,
Yamanakanamardi
Police Station,
Taluk: Hukkeri,
District: Belgaum. ... APPELLANT.
(By Shri V.M. Banakar, Additional State Public Prosecutor)
And:
1. Lagammappa Mutteppa Dummanaik,
Aged 32 years,
Occupation: Agriculture,
Resident of R. Yallapur,
Taluk: Hukkeri,
District: Belgaum.
2. Yellappa Kenchappa Gadakari,
Aged 52 years, Occupation: Agriculture,
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Resident of R. Yallapur,
Taluk: Hukkeri,
District: Belgaum.
3. Shanakar Kenchappa Gadakari,
Aged 50 years, Occupation: Agriculture,
Resident of R. Yellapur,
Taluk: Hukkeri,
District: Belgaum.
4. Kallappa Kenchappa Gadakari,
Aged 48 years, Occupation: Agriculture,
Resident of R. Yellapur,
Taluk: Hukkeri,
District: Belgaum.
5. Renuka, W/o. Yallappa Gadakari,
Aged 47 years, Occupation: Agriculture,
Resident of R. Yellapur,
Taluk: Hukkeri,
District: Belgaum.
6. Basappa Kenchappa Gadakari,
Aged 44 years, Occupation: Agriculture,
Resident of R. Yellapur,
Taluk: Hukkeri,
District: Belgaum.
7. Laxman Satteppa Dummanaik,
Aged 37 years, Occupation: Agriculture,
Resident of R. Yellapur,
Taluk: Hukkeri,
District: Belgaum.
8. Siddappa Sadeppa
@ Doddasadeppa Gundyagol,
Aged 35 years, Occupation: Agriculture,
Resident of R. Yellapur,
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Taluk: Hukkeri,
District: Belgaum. ... RESPONDENTS.
(By Shri Ganapati M. Bhat, Advocate
for Respondents 1 to 8)
This criminal appeal is filed under Section 378(1) and (3)
of the Cr.P.C. seeking to grant leave to appeal against the
judgment and order of acquittal dated 25.02.2013 passed by the
Fast Track Court & Additional Sessions, Judge, Hukkeri, in
S.C.No.351/2011 and set aside the judgment and order of
acquittal dated 25.02.2013 passed by the Fast Track court &
Additional Sessions Judge, Hukkeri, in S.C.No.351/2011 and
convict the accused in accordance with law as against the
charged offences.
This appeal coming on for hearing this day, Anand
Byrareddy J., made the following:
JUDGMENT
Heard the learned State Public Prosecutor appearing for the State.
2. The State is in appeal questioning the acquittal of the respondents who were accused of offences punishable under Sections 143, 147, 448, 324, 307 read with Section 149 of the :4: Indian Penal Code, 1860 (hereinafter referred to as 'the IPC', for brevity). The facts as stated by the prosecution were as follows:
It transpires that there was ill-will between the families of Accused No.1 and the complainant, as there was a long- standing dispute between their families, as a result of which it is claimed that on 11.11.2010, at about 5.45 p.m., the accused had trespassed into the house of PW-8 with an intention to cause the murder of the complainant and had assaulted him with a sickle and had caused injuries and thereafter had run away from the spot. The complainant and PW-2 had chased the accused and had caught him at Shahabandar, Yellapur road at about 6.00 p.m. But however, they were intercepted by accused Nos.2 to 8 who had formed themselves into an unlawful assembly and were armed with deadly weapons and had attacked both the complainant and PW-2, while abusing them in foul language. It is claimed that accused No.2 had assaulted the complainant on his head with a sword as well as PW-2 on his head and had caused injuries. Accused No.3 had attacked the feet of the :5: complainant with an axe and Accused No.7 had assaulted the complainant with a stone. Accused No.5 had assaulted PW-2 with a sickle on his leg and had abused them in foul language and attempted to murder them. In the meantime, PW-3 and CW-10 and CW-11 had separated them. Thereafter, the complainant and PW-2 had been shifted in a tempo to the Belgaum District Hospital and on an information received from the Medical Practitioner at the District Hospital, the police had swung into action and made enquiries and after obtaining a written complaint from the complainant, had initiated further action and had registered a case in Crime No.236/2010 and had taken further steps to gather incriminating material from the said place of incident. The accused had in turn also lodged a private complaint against the complainant and others and therefore the present case was treated as a counter case and was ultimately committed to the Court of Sessions, where the accused had stood trial. The prosecution had examined 12 witnesses and had got marked several exhibits and after the :6: completion of the trial, the court below had framed the following points for consideration:
"1. Whether the prosecution proves that on 11.11.2010 at about 18.00 hours at R. Yallapur village, on Shahabandar R. Yallapur road, when the complainant and CW.7 have gone to enquire accused No.2 to 6 in respect of assault made to the complainant at 17.45 hours by accused No.1, the accused No.1 to 8 with common object to commit an offence formed unlawful assembly and committed other offences being the member of unlawful assembly and thereby committed an offence punishable under Section 143 read with Section 149 of IPC?
2. Whether the prosecution proves that on 11.11.2010 at about 18.00 hours at R. Yallapur village, on Shahabandar R. Yallapur road, when the complainant and CW.7 have gone to enquire accused No.2 to 6 in respect of assault made to the complainant at 17.45 hours by accused No.1, the accused No.1 to 8 with common object to commit an offence formed unlawful assembly and caused rioting armed with deadly weapons like sword, axe and jambe and thereby committed an offence :7: punishable under Section 148 read with Section 149 of I.P.C.?
3. Whether the prosecution proves that on 11.11.2010 at about 18.00 hours at R. Yallapur village, on Shahabandar R. Yallapur road, when the complainant and CW.7 have gone to enquire accused No.2 to 6 in respect of assault made to the complainant at 17.45 hours by accused No.1, the accused No.1 to 8 with common object to commit an offence formed unlawful assembly and quarreled with the complainant and CW.7 and abused to them in filthy languages so as to provoke breach of the peace and thereby committed an offence punishable under Section 504 read with Section 149 of IPC?
4. Whether the prosecution proves that on 11.11.2010 at about 18.00 hours at R. Yallapur village, on Shahabandar R. Yallapur road, when the complainant and CW.7 have gone to enquire accused No.2 to 6 in respect of assault made to the complainant at 17.45 hours by accused No.1, the accused No.1 to 8 with common object to commit an offence formed unlawful assembly and :8: quarreled with the complainant and CW.7 with an intention to cause murder of them and the accused No.2 has assaulted with sword to backside of the complainant, accused No.3 has assaulted with axe to left foot and caused grievous injuries to him and caused attempt to murder of complainant and thereby committed an offence punishable under Section 307 read with Section 149 of the IPC?
5. Whether the prosecution proves that on 11.11.2010 at about 18-00 hours at R. Yallapur village, on Shahabandar R. Yallapur road, when the complainant and CW.7 have gone to enquire accused No.2 to 6 in respect of assault made to the complainant at 17.45 hours by accused No.1, the accused No.1 to 8 with common object to commit an offence formed into an unlawful assembly and quarreled with complainant and CW.7 and accused No.2 has assaulted with sword to the head of CW.7, accused No.3 assaulted with axe, and accused No.5 has assaulted with sickle to CW.7 and caused simple injuries to him and thereby committed an offence punishable under Section 324 read with Section 149 IPC?
:9:6. Whether the prosecution proves that on 11.11.2010 at about 17.45 hours in the house of CW.7, when the complainant was seeing newly purchased bullock, the accused No.1 has tresspassed into the house of CW.7 and assaulted with sickle to the back of complainant and caused vital injuries to the complainant and made an attempt to cause murder of complainant and thereby committed an offence punishable under Section 307 of IPC?
7. What order?"
The court below has answered all the points in the negative and has acquitted the accused. It is that which is under challenge in the present appeal.
3. On a close consideration of the arguments canvassed by the learned State Public Prosecutor and on an examination of the record, it is seen that as recorded by the Trial court, there were two incidents in view of the evidence of the prosecution. PW-1 to 3 and PW-5 had tendered evidence about the assault caused by Accused No.1 with a sickle upon the complainant. : 10 : However, the court has rightly found that the evidence of these witnesses, namely PW-1 to 3 and PW-5 were inconsistent as to the place of the incident and about Accused No.1 having assaulted the complainant. The evidence of PW-2 is totally in contradiction to the evidence of PW-1, 3 and 5 insofar as the accused having run away along with the weapon with which he had caused injury to the complainant, while the others had sought that it had been thrown at the spot after causing injuries to the complainant. There is inconsistency insofar as the motive alleged that Accused No.1 was seeking to avenge an earlier incident and further, PW-1 and 2 had admitted in the course of their evidence that there was no ill-will to their knowledge between Accused No.1 and the complainant. There was also no evidence tendered by the said witnesses as to any relationship or the common bond between Accused Nos.1 and 8 and there were three independent witnesses, namely CW-9, 10 and 11 who curiously have not been examined though they were cited as eye-witnesses. Therefore, under such glaring circumstances, the court has held that the primary witnesses, : 11 : namely PW-1, 2, 3 and PW-5 have not supported the case of the prosecution and hence could not be readily accepted as establishing the case of the prosecution.
It is further pointed out by the Trial court that PWs 1 to 4 had tendered evidence about the assault caused by accused to PW-1 and 2 with sword, axe and sickle and if indeed the individual acts of Accused Nos.2 to 8 are taken into consideration, it would appear that the evidence of PWs 1 to 4 are totally contradictory and inconsistent. They are also inconsistent insofar as the injuries said to have been sustained by PW1 and PW2. PW5 has been treated as a hostile witness insofar as his claim that the incident had taken place in front of the school. Though an attempt was made to contend before the court below by the prosecution that when large number of persons are said to be the accused, all armed with deadly weapons, it is not expected of the victims to narrate as to which accused had caused which injury and as to what weapon was used by the said accused, as laid down in the case of Kuriya and another vs. State of Rajasthan (2013) SCC (Cri) 202. : 12 : However, the court has opined that when there is a scuffle between two groups, the witnesses are expected to state about the preparation and the object of the commission of offence by the accused persons. Therefore, merely to rely upon the above judgment to hold that there is inconsistency in the evidence of the witnesses not to be given much importance, is not acceptable, as the evidence did not disclose that the group had formed themselves into an unlawful assembly and had waited for the complainant and PW-2 to arrive at the scene in order to assault them. It is evident that the motive alleged is not consistent. Exhibit P1 is said to have been written by one Parashuram Godi and he has not been examined before the court. PW-8, the Head Constable had not tendered evidence as to the complaint having been written in his presence. Therefore, the very complaint itself is doubted, as it would not help to prove the guilt of the accused in the absence of any motive forthcoming from the said complaint and about its authorship. The court has further observed that when there is a scuffle between two groups and admittedly when there is : 13 : pendency of another case instituted by the accused in the first instance and thereafter the complainant having lodged a second complaint in respect of the same incident, it was necessary to establish as to who were the aggressors and who were the victims. This is not established by any cogent evidence. Further, the motive behind such attack and also the fact that since it is the case of the complainant that they chased the Accused No.1 and that they ultimately caught up with him, accused Nos.2 to 8 who are said to have come out of their respective dwellings are said to have formed an unlawful assembly and it could not have been at moment's notice, unless there was earlier preparation and a common object, which is not established with any clarity. Therefore, the main allegation that Accused Nos.1 to 8 had formed themselves into an unlawful assembly and had prepared to attack the complainant as well as PW-2 in the manner as aforesaid as if the accused were aware that the complainant and PW-2 would arrive at the scene of occurrence. It is not the case of the complainant that they had seen all the accused armed with deadly weapons lying in wait : 14 : for them at the particular point. On the other hand, they had claimed that when they reached the area where the accused were living, they had come out of their huts on hearing the commotion of the complainant and PW-2 chasing Accused No.1. Therefore, the Trial Court has gone on to hold that the formation of an unlawful assembly or the accused having acted with a common object of committing the murder of the complainant and PW-2, is not established. Similarly, the Trial court has addressed other circumstances such as there being a case and counter case and that the accused themselves had suffered injuries and though the complainant and PW-2 feigned ignorance about the manner in which the injuries were caused, the court had placed reliance on the decision of the Supreme Court to hold that in such case, the manner in which the injuries may have been caused to the accused also require to be explained and it is not forthcoming in the course of the evidence and particularly, the non-explanation of injuries caused on Accused Nos.3 to 5 has prompted the court to hold that it leads to an inference as laid down by the Supreme Court : 15 : in the case of Laxmisingh and others etc., vs. State of Bihar AIR 1976 SC 2263, that non-explanation of the injuries sustained by the accused creates a doubt in order to prove the alleged evidence against the accused persons. Further, the Trial Court has also observed that the evidence of the Medical Practitioner examined as PW-9 who had examined the injures sustained by the complainant, has issued a Medical Certificate to state that the injury sustained by PW-2 is only one simple injury on the front side of the head and that PW-1 had sustained three injuries on the right shoulder, back side of the head and right side of the head. And if the evidence of PW-1 to PW-4 was to be reconciled with the evidence of the Medical Practitioner, it would require that the said injured witnesses had suffered more injuries than the injuries stated by PW-9. This inconsistency between the medical evidence and the ocular evidence has again prompted the court to hold that the prosecution has not established its case beyond all reasonable doubt. The further evidence of the Medical Practitioner that Exhibit P8 and P9 are injuries that may have been caused by a hard and blunt object, : 16 : whereas in the case on hand, the material objects MO-1 to MO- 4 that were produced were sharp edged weapons and therefore, the possibility of the offence having been caused with sharp edged weapons, was also doubtful.
Though MO-5 was a stone, PW-1, PW-3 and PW-4 had not stated in their evidence in respect of assault made by a stone. It is in this fashion that the trial court has found that the medical evidence and the ocular evidence are also not consistent. Similarly, the panch witness had also not clearly supported the case of the prosecution as to the spot at which the incident had taken place. Hence, the court below having found that there was no consistency in the evidence of the prosecution and particularly when there are no explanations forthcoming as regards certain other circumstances, as already pointed out, the court has held that it would be difficult to sustain the case of the prosecution and accordingly, acquitted the accused. : 17 :
We find no infirmity in the reasoning of the court below in having addressed the several aspects in acquitting the accused. Accordingly, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE KS