Karnataka High Court
Nagamuthu S/O Ariyappa vs State Of Karnataka on 13 November, 2013
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF NOVEMBER 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL APPEAL NO.318/2006
BETWEEN:
1. Nagamuthu s/o Ariyappa
Aged about 58 years
R/o Uppinahalli
Nanjangud taluk,
Mysore district.
2. Nanjunda s/o Nagamuthu
Aged about 30 years
R/o Uppinahalli
Nanjangud taluk,
Mysore district.
3. Sathyanarayana s/o Subbaramaiah
Aged about 30 years
Tailor, Kurubageri,
Nanjangud town,
Mysore district.
4. Mallaiah s/o Huchaiah @ Madaiah
Aged about 40 years,
Kalale village,
Nanjangud taluk,
Mysore district. ...Appellants
(By Sri.P.Mahesha, Adv.)
AND:
State of Karnataka
By Rural police,
Nanjangud taluk,
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Mysore district.
Represented by SPP. ...Respondent
(By Sri.B.T.Venkatesh, SPP-II)
This Criminal Appeal is filed u/S.374 Cr.P.C
praying against the judgment dated 25.1.2006 pased by
the P.O., FTC-II, Mysore, in S.C.No.343/2000 convicting
the appellant-accused for the offence punishable under
Section 307 r/w 34 IPC and sentencing them to
undergo S.I. for 4 years and to pay fine of Rs.1,000/- in
default to undergo S.I. for 6 months.
This Criminal Appeal coming on for hearing this
day, the Court delivered the following:-
JUDGMENT
The appellants (hereinafter referred to as 'accused Nos. 1 to 4') were tried for offences punishable under Sections 451, 341, 323, 307 r/w 34 IPC in S.C.No.343/2000 on the file of Fast Track Court-II, Mysore. The learned Sessions Judge acquitted the accused for offences punishable under Sections 451, 341 and 323 IPC but convicted accused Nos. 1 to 4 for an offence punishable under Section 307 r/w 34 IPC. Therefore, they are before this Court. -3-
2. I have heard Sri.P.Mahesha, learned counsel for the accused and learned SPP for the respondent-State.
3. The learned SPP would submit that State has not filed any appeal against acquittal of the accused for offences punishable under Sections 451, 341 and 323 IPC.
4. In brief, the case of prosecution is as follows:-
PW-4 Ghouspeer is the maternal uncle of PW-1 Muheer. PW-6 Zubeda is the wife of PW-4. PW-4 Ghousepeer is the owner of the land bearing Sy.No.125 and 126 measuring 10 acres 2 guntas situated at Uppinahalli village, Nanjangud taluk, Mysore district. Accused No.1 Nagamuthu appears to be the owner of adjoining land. He had filed Form No.7 for grant of occupancy rights interalia contending that the land in Sy.No.125 and 126 belongs to him as he was cultivating the said land as a tenant under PW-4. There is a house in the said land.
It is the case of the prosecution that PW-4 and his family members were residing in the said house. On -4- 11.1.2000, at about 8 p.m., accused Nos. 1 to 4 gone near the house to dispossess PW-4 and his family members from that house. They had assaulted PW-4.
In the meanwhile, PW-1 Muheer reached the place of incident and questioned the highhanded hands of accused. Accused Nos. 1 and 2 assaulted PW-1 with clubs. Accused No.3 assaulted PW-1 and PW-4 had fisted him. PW-1 was shifted to General Hospital at Nanjangud and he lodged the first information with the jurisdictional police at about 11 p.m., on the same day (11.1.2000).
PW-2 Dr.M.Kumar, treated PW-1 in the General Hospital at Nanjangud. The Investigating officer has collected incriminating materials and completed the investigation and filed final report against accused Nos. 1 to 4 alleging the offences punishable under Sections 451, 341, 323 and 307 r/w 34 IPC.
5. In view of the acquittal of accused Nos. 1 to 4 for offences punishable under Sections 451, 341 and 323 IPC and conviction of accused Nos.1 to 4 for an -5- offence punishable under Section 307 r/w 34 IPC, the following point would arise for determination:-
(i) Whether the prosecution has proved that on 11.1.2000, at about 8 p.m., accused Nos.1 to 4 shared common intention and assaulted PW-1 Muheer with clubs and also fisted him, with such intention and knowledge, if they had caused the death of PW-1, they would have been held guilty of an offence punishable under Section 302 IPC, thereby accused Nos. 1 to 4 committed an offence punishable under Section 307 IPC?
6. My findings on the above point and the reasons thereof are as follows;
7. In order to bring home the guilt of accused, prosecution has relied on the following:-
(a) Motive
(b) Evidence of injured witness and evidence of eyewitnesses namely PWs 4 to 7
(c) Medical evidence of PW-2 Dr.M.Kumar
(d) Recovery of incriminating articles and evidence of Investigating officer.-6-
8. It is seen from the records, in particular, copy of the order made by this Court in W.A.No.7483/1999 dated 21.10.2002, accused No.1 Nagamuthu had filed Form No.7 for grant of occupancy rights in relation to the land bearing Sy.No.125 and 126 to the extent of 10 acres 2 guntas. He had contended that he was cultivating the afore-stated land as tenant under the father of PW-4. The Land Tribunal dismissed the application. Aggrieved by the same, he preferred W.P.No.21723/1994. This Court dismissed the writ petition on 02.09.1999. Against the order of dismissal, he has preferred W.A.No.7483/1999. Thus, on the date of incident, the tenancy claim of accused had been negatived by the Tribunal and so also by this Court. The above circumstance would clearly indicate that there was enmity between accused Nos. 1 and 2 on one side and PW-4 and his family members and PW-1 on the other side. In view of the above documentary evidence, the contention of accused which they have sought to establish from cross-examination of some of the prosecution witnesses, in particular PW-4 that accused -7- No.1 was in possession of the house situated in a land bearing Sy.No.125 and 126 and there was an attempt made by PWs 1 and 4 to dispossess from the house cannot be accepted.
9. It is seen from the records that there has been long drawn tenancy litigation between the parties. As per the submission of learned counsel for accused, the tenancy dispute is still pending. In the circumstances, if the accused had any order or record to indicate their possession of the house as on the date of incident, they would not have failed to produce the same before the court below. Therefore, it can be concluded that the prosecution has proved the motive.
10. The law is fairly well settled that motive is a double edged weapon. The motive could be a reason for the accused to assault and it could also be a reason for prosecution witnesses to falsely implicate the accused. If the evidence of the prosecution is found credible, consistent and trustworthy, the motive would provide additional incriminating circumstance against the -8- accused. If the evidence adduced by the prosecution is weak and feeble, accused could contend that motive is a reason for false implication. The prosecution has relied on direct evidence given by PW-1 if evidence of PW-1 is found consistent and credible, motive looses significance.
11. PW-1 Muheer is the injured witness. PW-1 has deposed that on 11.1.2000, he had gone to the garden land of PW-4 Ghousepeer and he had carried meals to PW-4 and his wife PW-6 Zubeda. At that time, accused were assaulting PW-4 and PW-6 in front yard of their house. When PW-1 intervened, accused No.3 held him and accused No.1 assaulted him with a club. Accused No.2 assaulted on the chest of PW-1 with a club. Accused No.4 fisted him. He lodged first information with the jurisdictional police. The police took him to the General Hospital at Nanjangud. PW-1 has deposed about the tenancy litigation pending in relation to the land bearing Sy.Nos. 125 and 126.
During cross-examination, PW-1 has deposed that he was not aware if accused No.1 has taken electric -9- connection to the disputed house and that he was residing in that house.
12. As already stated, the tenancy litigation was pending for several years. On the date of incident, if accused No.1 had any order or any document in his favour to indicate the possession of the disputed house, he would not have omitted to produce the same before the court below. Much of the cross-examination of PW- 1 is concentrated on the tenancy dispute pending between accused No.1 and PW-4.
13. The evidence of PW-1 finds substantial corroboration from the evidence of PW-2 Dr.M.Kumar, who had examined PW-1 at 11.45 p.m., on 11.1.2000 at General Hospital, Nanjangud. PW-2 had noticed the following injuries:-
(i) A lacerated injury over middle anterior - parietal region of head size 3 cms x ¾ cms. Bone deep covered with blood clot.
(ii) Tenderness over left side of abdomen present.
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(iii) Contusions over front middle right thigh size 4 cms x 3 cms, red in colour. Tenderness present.
14. PW-2 has opined that the injuries are simple in nature and they could have been caused by assault with a club. During cross-examination, PW-2 has admitted that Material Objects 1 and 2 (clubs) are blunt weapons. PW-2 has deposed, if a person is assaulted on his head with clubs like Material Objects 1 and 2, there are chances of fractures, however, it depends on the force with which the person is assaulted. There are no reasons to suspect the evidence of PWs 1 and 2. It is true that there was enmity between PW-1 and accused No.1. However, that by itself is not sufficient to discard their evidence.
15. A careful scrutiny of evidence of PW-2 would reveal that accused Nos. 1 and 2 assaulted PW-1 and caused bleeding injuries. The prosecution has not adduced evidence to prove that there was any motive for accused Nos. 3 and 4 to assault PW-1. PW-1 has deposed that he was held by accused No.3 and accused
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No.4 fisted him. There are no corresponding injuries. PW-1 has deposed that he was simultaneously assaulted by accused Nos. 1 and 2 with clubs and in the circumstances, evidence of PW-1 he was held by accused No.3 looks improbable. In my considered opinion, evidence of PW-1 that he was held by accused No.3 and fisted by accused No.4 does not inspire confidence and does not find place in the first information. It is also not supported by the medical evidence.
16. PW-4 Ghousepeer is the maternal uncle of PW-
1. PW-4 has deposed about the tenancy litigation pending between PW-4 and accused. PW-4 has deposed, on the date of incident, when he was staying in the house along with his wife PW-6 Zubeda, accused came and forced to come out from the house. Accused Nos.1 and 2 were armed with clubs. They assaulted PW-4 with club. At that time, PW-1 came to that place. He had brought food to PW-4 and PW-6 as they are not well. Accused Nos. 1 and 2 assaulted PW-1 with clubs.
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PW-1 went to the police station. On the following day, police came and seized the clubs.
17. Before adverting to the appreciation of evidence of PW-4 in relation to the assault by accused Nos. 1 and 2, it is necessary to state that PW-4 has not deposed that accused Nos. 3 and 4 were present near the place of incident. Therefore, it can safely be inferred that there is no evidence to prove that accused Nos. 3 and 4 had assaulted PW-1. PW-4 has deposed that he was assaulted by accused Nos.1 and 2 with clubs, but however he had not suffered any injuries and he had not gone to the Hospital. The evidence of PW-4 that accused Nos. 1 and 2 assaulted PW-1 with club does not suffer from any discrepancy.
18. PW-5 Dastagir was working as a labourer in the garden land of PW-4. PW-5 has deposed that accused Nos. 1 and 2 assaulted PW-1 with clubs. PW-1 suffered bleeding injuries. PW-5 is an independent witness. There are no reasons to suspect his evidence.
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Therefore, his evidence lends corroboration to the evidence of PWs 1 and 4.
19. PW-6 Zubeda is the wife of PW-4 Ghousepeer. PW-6 has deposed that on the date of incident, PW-1 had brought food to PW-4 and PW-6 as they were not feeling well. Accused Nos. 1 and 2 were forcing PWs 4 and 6 to vacate their house. When PW-1 intervened, accused Nos. 1 and 2 assaulted on the head of PW-1 and caused bleeding injuries to him. Accused Nos. 1 and 2 also assaulted PW-4 with clubs and however, he had not suffered any injuries.
20. PW-6 has not deposed about the presence or participation of accused Nos. 3 and 4. Therefore, it can be inferred that the prosecution has not proved the presence or participation of accused Nos. 3 and 4 in the incident of assault.
21. PW-7 Naseera is the daughter of PWs 4 and 6. PW-7 has deposed that accused Nos. 1 and 2 assaulted PW-1 with club on his head and caused injuries to him. PW-7 has not deposed about the presence or
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participation of accused Nos. 3 and 4. The evidence of PW-7 discloses that accused Nos. 1 and 2 assaulted on the head of PW-1. It does not suffer from any discrepancy. There are no reasons to suspect the evidence of PW-7.
22. Thus, we find that the evidence of injured witness PW-1 finds substantial corroboration from the evidence of PWs 4 to 7. The evidence of PW-1 also finds support from the medical evidence given by PW-2 Dr.M.Kumar. Therefore, the prosecution has proved that accused Nos. 1 and 2 had assaulted PW-1 with clubs and caused injuries to him. The prosecution has failed to prove the presence or participation of accused Nos. 3 and 4 in the incident of assault.
23. The next point for consideration is, what is the nature of offence committed by accused Nos. 1 and 2?
24. As already stated, there has been long standing tenancy dispute between accused No.1 and PW-4. It is not the case of prosecution that accused Nos.1 and 2 were waiting for the arrival of PW-1 to the
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place of incident. PW-1 is a resident of Nanjangud town. He has deposed that he had carried food to PWs 4 and 6 who were residing in the garden land situated at Uppinahalli. We also find from the evidence of PW-1 that apart from PW-4 there were several persons in the place of incident. It appears there was a quarrel between the accused on one side and PW-4 and other persons on the other side. In the said quarrel, accused Nos. 1 and 2 assaulted PW-1 and caused injuries. The injuries suffered by PW-1 were simple in nature. Therefore, I hold that the prosecution has proved accused Nos.1 and 2 assaulted PW-1 and caused injuries, thereby committed an offence punishable under Section 324 r/w 34 IPC.
25. The learned Sessions Judge without proper appreciation and analysis of evidence, has arrived at an omnibus conclusion to hold accused Nos. 1 to 4 are guilty of an offence punishable under Section 324 r/w 34 IPC.
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26. The learned counsel for accused submit that having regard to the civil dispute pending between the parties, a lenient view may be taken in the matter of sentence. He further submits that there are mitigating circumstance in favour of the accused.
27. It is seen from the records that tenancy dispute was pending on the date of incident. The tenancy application filed by accused No.1 had been dismissed and so also the writ petition filed against the order of Land Tribunal was dismissed by this Court on 21.09.1999. Thus, on the date of incident 11.1.2000, the claim of tenancy put forth by the accused had been negatived. In the circumstances, accused Nos.1 and 2 should not have taken law into their hands. Accused Nos. 1 and 2 does not bear criminal antecedents. Therefore, having regard to mitigating circumstances and extenuating circumstances, I deem it proper to sentence accused Nos. 1 and 2 to undergo simple imprisonment for a period of six months and to pay fine of Rs.10,000/- each for an offence punishable under Section 324 r/w 34 IPC.
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28. In the result, I pass the following order:-
The appeal is accepted in part. The impugned judgment as it relates to conviction of accused Nos. 1 to 4 for an offence punishable under Section 307 r/w 34 IPC is set aside. Accused Nos. 1 to 4 are acquitted of the offence punishable under Section 307 r/w 34 IPC.
Accused Nos.1 and 2 are convicted for an offence punishable under Section 324 r/w 34 IPC. Accused Nos.1 and 2 are sentenced to undergo simple imprisonment for six months and to pay fine of Rs.10,000/- each, in default, to undergo simple imprisonment for a period of one month.
The period of detention undergone by accused Nos. 1 and 2 during trial is given set off as provided under Section 428 Cr.P.C. The bail bonds executed by accused Nos.1 to 4 shall stand cancelled.
Sd/-
JUDGE Srl.