Karnataka High Court
State Of Karnataka vs Hosakeri Ningappa @ Lingappa on 12 January, 2012
Bench: K. Sreedhar Rao, A.S. Bopanna
it
w THE HIGH COURT oFr:.KA'Rrr¢'ATA_KA:" é
CIRCUIT BENCH _AT DHARWADLL D D '
Dated this the 12"' Day of Jartuary
Present?' * .
THE HON'BLE r{<f5sr%éE.EDHA'R"RAe
THE HON'BLE M#R1{JU'S--Tui'C"E _A;s..'B<jPwANNA
_ D C'rivmina_t'VAbp'e:al j\r5:9V71 r'2Qd5
BETWEEN:_ ~ a
State of Kaé'natat<a"by__ 9 '- D '-
Circle Inspec:tQ'r---o1t;_:Polir:_e; A
Rural Pdice a.S:tatior'1f§ "Hospae-t. ...Appel|ant
(By S ri:7\/. Ba na )
_fl
1, Hcsat{eri:VV:Ningappa @ Lingappa,
- S'/0_ L-est Ha_nu.manthamma,
2. H.osa_keri «Devaraj,
S/0. Lesi Hanumanthamma,
.. ,32 years,
beth are R/o Talawalkeri,
D Hospet, Dist: Bellary. ...Respondents
'V Sri. T.Hanumareddy, Advocate) ck This criminal appeal is filed under Section 378(1)'-.&~(.3) of the Code of Criminal Procedure by the State 9.9.. forJth'e State praying that this Hon'b|e Court may be pleased"tojgrjahtf1. leave to file an appeal against the judgment 'andvjorrder off acquittal dated 10.02.2005 passed bymthe Prl."Bel|a"r.y in S.C.No.1/1995 acquitting the res;_5ondent--a«ccus.ed«._for'-the':
offence punishable under Sections '»307{;"3.02 'read with :"3.4':1,rf' IPC. _ This criminal appeal cornoyifngtg on tor }1~e,la:'|r/i[\vvg-¢vv4'ti;llSyday, 1' K.Sreedhar Rao, J, delivered the fo~llow.ing: ' The ofithe case disclose that the lands that of one Maruthi-
had grown coconut trees trees lying on the border of the land were': protruding over the land of the '1 V' acc--use5d;. The accuvsediwere insisting P.W.1 to cut the coconut tr§e's them from protruding on to their land. P.W.1 to the advice of the accused and there used to be"ocicasiona| quarrels between them. On 31.03.1994 at
2.00 p.m., the accused had set fire to sugarcane waste 4/ in the process of cleaning the land.__.T.h.e fireiisipireafd Vi'r':toa.the_V it' lands of P.W.1 and damaged the cor;onu_ttree's. ~1' --. '
2. One Ramanjineya is'i_th'e_deceased_ of v T' P.W.1. The deceased and onepDuVrgap=pVa--P.hW;2..._Who were in the land, went and tried"'-to--pu't. :.the--V.ufi:eli.n the land of the accused. There was verbal. excVl1'ange~.._sTh§2. accused became wild, abused theide;-ceaisedi coconut trees. Accused deceased on the neck a,.n--d--vfacs'e..i.'l5;1';{§/~;2h-uefland cry. P.W.1, who was nearbhscamevaccused after assaulting the deceasedviipushed._hi'rn" the fire. When P.W.1 went to rescue, 'he wads"-als_o pushed into the fire. The accused ran »A away scene. P.W.1 with the help of others took the de'ceased"_"i»n_ aifb'ullock--cart to the hospital. The deceased was in h"osp'ital'a'nd he succumbed to the injuries in the hospital on it O$._Q4.1T9¢94 at 1.30 am. P.W.1 had lodged complaint before "police on the day of the incident at 4.30 p.m. The dead if " *-'body was subjected to post--mortem. The Investigating Officer conducted spot mahazar. Accused No.1 was arrested on 4/ 01.04.1994. Accused No.2 was not arrested'"--b'}t--.'..:itiié'*A lnvestigating Officer and he was released on__antjuc:ii~pVatory._bail'." i The Post-mortem Report discloses th:atsjj.d"egath.' asphyxia as a result ofV.i'respirator'y failu*re.,i:'_dueT; to haematomyelia in the region ivivoifigtlwe ceivic:ali':s.oi_nal cord extending upto the brai'n:,._._"lV'«--he 24ihOlJxrS Pll0|' t0 post-mortem. The recording the Statements the charge-sheet against the. offences under Sections 302, 3:57 ain1d"3i2s4 'read with..VVSe_ct'ioVn 34 of IPC.
3. l5[\i'\(;i1v.isv'an Viir1_iui'eud eye-witness and P.W.2 is an eye- wit_riess the incident; Dr. Anandakumar-P.W.3 is the doctor conduct'ed post-mortem examination. Dr.Sumangala- Pill/VVil9if'isa"_tvh_e'fldoctor who treated P.W.1 and issued wound certifica_tes.'v'ide Exs.P.7 & 8. One K.S.Hanumanthappa--P.W.7 isithe s-cot panch witness and he is also a witness to the =.in~quest. P.W.1O is the Investigating Officer who registered the V. P.W.12 is the Investigating Officer who conducted the investigation and file sheet.
4. The Trial Court considering._the;"e\/idenycera'dd'uc'ed the prosecution has acquitted the accused tot} following reasons:
(a) Accused" No.1 piiadt t_aj4lsds..$ustained"3O°/o burn injures and he was admiitit-ed2"to.éthej.~»h'o'spitaI along with P.W.1 and':.tVh'_e on A1 are not explainiedf---. " *3' (b.) 'Tr;:fe_credib--i'lii'tvy lthat he his eye witness is do_Li_bte5d.~;Vg.l.t'noisy jby P.W.2 that accused have filed ca"crimirnal"-j.comp_l'a'i'ait against him and that they had ; hostile 'rel-ationishiip-.
:V(<c):"'T_he evidence of P.W.1 suffers from serious ."'Vi'discr'ep__ancies. In the FIR, there is no mention of accused 'jo'..2 instigating accused No.1 to commit murder of the AA '*-.__deVceased. It is only in the course of investigation a theory "is developed that accused No.1 assaulted the deceased at the instiga used No.2.
(d) The genesis of the incident --«..
explained. The injuries sustained by the de'ceasedA_ and' P.W.1 are of simple inV.*na__ture.V"The med'iVcal,:'_evicl'ence_', discloses that injury at the regi'c.n:is'V'not:'the cause for the haemato'rnyelia.'_'Aivyhivch.V_ca'used the asphyxial death. P.W.3 stateisthat ir:j'u1lVi.I'g'~w'hich caused the death, misgh't';ha've been on the ground. .... has-_:not'--ide_n*tified the weapons--M.O.2 and M.O..3'ualjl'ejg'ed4'l'o:'h'ave" been used for commission of theroffence a;ccu's.ediN*'os.1 and 2.
(f) of P.W.1 with regard to the overt-
of the incident is unacceptable because yé'rsio;n"Vshows that it is a one sided attack on the part of"-th.e"a'ccused whereas the material on record discloses .. thataccused No.1 had also sustained burn injuries and " -'the said injuries are not explained by the prosecution. The Trial Court. for the above said reasons acquitted the T -~»--accused.
CV
5. On the complaint on accused No.1, a counVt"e«r."~case was also filed against P.Ws.1 and 2 and the tried in S.C.No.11/1995. The said."cou'nter"..gca.se:V:ispnofrtriied simultaneously. P.W.1 and other State aggrieved by the acquittal._o'f..apcused t'l1.gre_inVV"hVas"not filed' V the appeal. T
6. Shri Ffublic Prosecutor, strenuously copntehded the Trial Court for acquittal"a"re__Vt;l-i.rn;sy' P.W.1 is an injured eyewitness,_'yv.hi'o injuries. The observations of the :Tria'--$ is discrepancy in the contents of the FIR and o_ra!_ is P.Ws.1 and 2 with regard to participation of No.2 is untenable. The FIR allegations that it was accused No.1 who assaulted the sickle and accused nos.1 and 2 both pushed the"--dec.ease'di into the fire and they also pushed P.W.1 into the sfireypwhen he came to rescue. The above averments clearly '._di'scl'ose the sharing of common intention on the part of accused is -~~No.2 in committing the offence. The deceased, even assuming CL/g for a moment that he was pushed and sustained hea;d4._4linjury which resulted in death, the accused wouid_-hie'Aiitet;-iefrier, conviction for the offence under Section '"i'=.of_ There is no good reason to reject .2 who are witnesses to the inciden-t___and rnor'eso, P'V."\'I'\JjL1.p.\Wh_C:E3 lean". injured eye--witness. With regard.._to _theV"i'n.jurile's accused No.1, it is submitted that4_they fare. naturepwhich could have been self-inflicted to_cvov.ei'i.v'uVp:the'~ac't".of._rnurder.
7. 'co.l}.si'd.era.tio:n' averments made at the «tevidfence, we find that the Trial Court:hjas'- not conducting the trial of the case aindkcou'itte'rt.V,'9ag§»..i4T Jsimultaneously. However, that irreg.Aul'arl~ty willuinotjhave any material bearing upon the evidence .A ofthis_VcasejVi:fcr__assessing the guilt of the accused. It is evident "from; tVheaT_v»mat'eria| on record that accused No.1 had also su'stain._fe'd burn injuries to an extent of 30%. The prosecution has ncit---'.exp|ained the said injuries. The FIR version and the iflev-idience of P.Ws.1 and 2 does not truthfully project the = incident. Their evidence shows that it is almost a one sided cl/t attack, which does not appear to be a correct inferablg that there would have lfieen scuffle. accuse person on one part and t e decease¢l__'O_n- part. It is acceptable that accused 'h'a\.i_e"as;s'a'ul_te'd betilsmoilst the deceased with sickle in the _scuffle, and the.--'iJec'ease:d'"was.by pushed to the ground. The ev'i'dejnce of 'when he went to rescue the dece"a.s'ed,'.~he' was ua'iss.o pushe'd"'into the fire also appears to be credi4b|Ve..'becvaus'e also sustained burn injuries}. the evidence of P.Ws.1 and' gets proved, but however, the nature' from the nature of injury sustained and' per the Post-mortem Report. _;'8., P.\u/V:»3,.j_V_V"t'he V" doctor who conducted post-mortem has categorically stated that the injury caused with "ga*~"_siol<le"'~.,jjon:"jthe cervical spine is not the cause for ihae«mat.__o'mye'|iAa and that injury is possible by falling on the rough surface. it is inferable that in the scuffle, the deceased it have fallen down. Therefore, from the nature of injuries = .--inflicted on the deceased it cannot be said that accused had %/ :10: intention of causing death or intentionally_.caus:edV which would cause death in the o:,rdin:a.rvflcoursjeb.The..___injury, which caused the death, is one caused._uriintenati'cna,i|:l4v' fall. also cannot be said that the accvuiseci had lmowledgeigof causing ~ death. However, the overt actslof the accused' cI..ear.!'y suggests his intention of weapons and that accused Nos.1_an,d 2 rsjhared for inflicting injuries on Therefore, the order ofthe Trial is bad in law.
are convicted for the offence under Section 324V'rea~d_sw~ith 34 of IPC for causing injuries to the de._céased and are's.e.nt'enced to undergo rigorous imprisonment ' pe:riojd»::'of----_six months and shall pay fine of Rs.75,000/- each, in to suffer simple imprisonment for a period of six mc-,~.r__iths_.> * _ it Accused Nos.1 and 2 are convicted for the offence Section 324 read with Section 34 IPC for causing injuries ., .._-«tio P.W.1 and are d to undergo rigorous imprisonment :11: for a period of three months and to pay fine of Rs..1"O.,OOO/- each, in default, to suffer simple imprisonment for a.i.p_eriVod:"of"si.x months. The accused are entitled to benefit o'f:__:setfoffi'underk' Section 428 of Cr.P.C.
11. Sentence of imprisonmentitov run confcVur:r_entl_y-'. The. entire fine amount to be paidivivifbyiithep inivgrespect of causing injuries to be payabie as compensation to_t_he wife. if any and the entire;-.iV'ifi§_'i¢%|ff|Qi§'flt accused in respect of causinngzi be payable to P.W.1 as compensa_tionf'._--~__.__V'; v "
_Accordinglygt._he~-appeal is allowed. Sd/-
JUDGE Sd/~ JUDGE