Karnataka High Court
Ananda Reddy S/O Venkataravanappa vs State Of Karnataka on 11 July, 2018
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO. 212 OF 2011
BETWEEN
1. ANANDA REDDY,
S/O VENKATARAVANAPPA,
AGED ABOUT 43 YEARS
2. GOPALAPPA,
S/O SONNAPPA,
AGED ABOUT 35 YEARS,
BOTH ARE RESIDING AT
MATTAKANNA SANDRA VILLAGE,
RONUR HOBLI,
SRINIVASAPURA TALUK,
KOLAR DISTRICT.
... APPELLANTS
(BY SRI. B. ANAND, ADVOCATE)
AND
STATE OF KARNATAKA
BY SRINIVASPURA POLICE.
... RESPONDENT
(BY SRI. K. NAGESHWARAPPA, HCGP)
THIS CRIMINAL APPEAL FILED U/S 374(2) OF CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED 09/10.02.2011
PASSED BY THE I ADDL. S.J., KOLAR IN S.C.NO. 137/2008 -
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CONVICTING THE APPELLANTS/ACCUSED NO.4 AND 11 FOR
THE OFFENCE PUNISHABLE UNDER SECTION 326 R/W 34
OF IPC. THE APPELLANTS/ACCUSED NOS. 4 AND 11 ARE
SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR A
PERIOD OF 2 YEARS FOR THE OFFENCE PUNISHABLE
UNDER SECTION 326 R/W 34 OF IPC. AND FURTHER THEY
SHALL ALSO PAY A FINE OF RS. 5,000/- EACH, IN DEFAULT,
THEY SHALL UNDERGO FURTHER PERIOD OF ONE MONTH
SIMPLE IMPRISONMENT.
THIS CRIMINAL APPEAL COMING ON FOR HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment of conviction dated 09.02.2011 and order of sentence dated 10.02.2011 passed in S.C.No.137/2008 by the I Addl.District and Sessions Judge, Kolar convicting appellants/accused nos.4 and 11 for the offence punishable under Section 326 read with Section 34 of IPC wherein these accused were sentenced to undergo SI for a period of two years and to pay a fine of Rs.5,000/- each and in default of payment of fine, to undergo SI for a period of one month. Hence, the present appeal is filed challenging the impugned judgment by urging various grounds. :3:
2. The factual matrix of the appeal are as under:
That on 23.01.2007 at about 5.30 p.m. at Mattakannasandra village, Ronur Hobli, Srinivasapura taluk, all the accused formed unlawful assembly due to political ill will with common object by holding deadly weapons like clubs, longs, choppers, tried to commit murder of CWs 1 to 9, Accused no.5 assaulted with stones and clubs on CW3-Munivenkatappa, accused no.12-Kodandappa, accused no.8-Shivakumar, accused no.7-Venkataravanappa, accused no.6-Chalapathi, accused no.1-M.K.Srinivasa Reddy, accused no.9-Seenappa, accused no.5-Venakataravana, accused no.2-Jagadeesha Reddy, accused no.3-Chandra reddy voluntarily caused hurt to CWs.1, 4, to 7, 9 and caused bleeding injuries with an intention to commit murder accused no.10-Krishnappa, accused no.1- M.K.Srinivasa Reddy, accused no.5- Venkataravana, accused no.2-Jagadeesha Reddy caused grievous injuries to CW.2 - Venkataravanappa, CW-8-Gopalakrishna; accused Nos.4, 11 caused grievous injury to CWs 2 to 4 with clubs, stones, longs, choppers.
2. In pursuance to the acts of the accused persons, on filing of a complaint, crime came to be registered against the :4: accused for the offences punishable under Sections 143, 147, 148, 324, 326 and 307 read with Section 149 of IPC. The court below framed the charges against the accused for the offences punishable under Sections 143, 148, 324, 326 and 307 read with Section 149 IPC and they did not pleaded guilty but claimed to be tried. Thereafter, in order to prove the case, prosecution in all examined PWs 1 to 17, and got marked Exhibits P-1 to P-14 and closed its side. On behalf of accused Ex.D.1 was marked. Subsequent to the closure of the evidence, the incriminating statement of the accused under Section 313 Cr.P.C. was recorded where accused had denied the truth of the prosecution evidence adduced and they did not come forward to adduce any defence evidence.
3. On hearing the arguments advanced by the prosecution as well as the defence counsel and on evaluating the entire evidence on record, the court below acquitted Accused Nos.1 to 3, 5 to 10 and 12 for the offences punishable under Sections 143, 147, 148, 324, 326 and 307 read with Section 149 IPC, but convicted accused no.4 and 11 for the offence punishable under Section 326 read with Section 34 of IPC. It is this judgment which is under challenge in this appeal. :5:
4. Heard learned counsel for the appellants and learned HCGP for the State and perused the entire records.
5. Learned counsel for the appellants, during the course of his arguments has taken me through the evidence of material witnesses that the prosecution had relied upon. He contends that the court below without proper appreciation of evidence among the 12 accused has convicted these two accused and further contends that the overt acts attributed to these appellants is that the accused no.4 assaulted Venkatappa with a chopper on his head and accused no.11 assaulted Munivenkatappa with a iron rod on his mandible and broke his teeth.
6. Further, he contends that admittedly, both the complainant and the accused belong to different political parties and because of the ill-will between them, these accused have been falsely implicated in the above case. It is further submitted that in a counter case registered against the complainant and his followers in S.C.No.41/2010, the same has been ended in acquittal. Further he contends that the court below without proper appreciation and without proper scrutinizing the :6: evidence of the witnesses, has erred in convicting the appellants without there being no iota of evidence.
7. He further contends that as per the evidence of prosecution witnesses and as per the evidence of PW.17 Doctor, there was no grievous injury on the vital part of the body. Hence, Section 307 of IPC will not attract. Further in the evidence of witnesses, there are so many contradictions and omissions with regard to allegations made against the accused. The prosecution has miserably failed to bring home guilt of the accused beyond all reasonable doubt by placing cogent and corroborative evidence. The court below has misdirected and misread the entire evidence of these witnesses and erroneously come to the conclusion that the prosecution has proved the guilt of the accused.
8. On all these grounds urged, the learned Counsel for the appellants prays for re-visiting the impugned judgment of conviction and sentence by re-appreciating the entire evidence in a proper perspective and prays that the impugned judgment of conviction and sentence held by the Trial Court in S.C.No.137/2008 be set aside by allowing this appeal. :7:
9. Per contra, learned HCGP for the State, while taking me through the records and evidence of the witnesses contends that PW.2 Venkatappa categorically stated that accused No.4 Ananda Reddy assaulted him with M.O.1 - chopper on his fore head and caused grievous injury. Accused No.11 Gopalappa assaulted PW.3 - Munivenkatappa with M.O.2 - Iron rod as a result of which he lost one teeth. These facts are corroborated in the evidence of PW.1, 3, 4, 5 and due to illegal acts of accused no.4 and 11, PW.2 and PW.3 have sustained grievous injury and they have been rightly convicted by the court below under Section 326 of IPC.
10. On these grounds, he supports the impugned judgment of conviction and sentence held by the Trial Court. He contends that the Trial Court has appreciated the evidence on record in a proper perspective and had succeeded in proving the guilt of these accused, which is clear from the evidence itself. He submits that the court below on appreciation of the entire evidence on record has rightly convicted the accused and seeks for dismissal of the appeal preferred by the appellants as being devoid of merits.
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11. Keeping in view the arguments advanced by learned counsel for the parties, it is relevant to note that PW.1 Venkataravanappa is the injured - complainant and he has deposed that when they were performing Sankaranti festival, accused persons caused obstruction to drum beaters, and on 23.01.2007 at about 5:30 p.m. when they were proceeding in front of the house of accused no.1 - Srinivasa Reddy, accused persons pelted stones from the terace of the house of accused no.1 and some of the accused caused injuries with stones, clubs, choppers. Accused No.12 - Kodandappa assaulted him with stone and caused fracture on his right knee and in the said incident CWs.2, 3 and 5 sustained grievous injuries and in this behalf he lodged complaint as per Ex.P1.
12. PW.2, Venkatappa is an injured eye witness. He has deposed that accused no.4 - Ananda Reddy assaulted him with M.O.1 - chopper on his forehead, causing injury and accused no.10 - Krishnappa assaulted him with long on his back and accused no.11 - Gopalappa assaulted CW-3 - Munivenkatappa with iron rod as a result of which he lost his teeth and had been to Hospital along with other injured persons. :9:
13. PW.3 - Munivenkatappa has deposed that while performing Sankaranti festival on 23.01.2007, the accused caused obstruction at about 5.30 p.m. when they were proceeding in cattle procession in front of the house of accused no.1 - Srinivasa Reddy and some of the accused who were on the house terrace of accused no.1 pelted stones at him and others, as a result they sustained injuries. Accused No.11 - Gopalappa assaulted him with rod, as a result he lost his tooth and fell unconscious and they took treatment in Government hospital, Srinivasapura and later at Victoria Hospital,Bangalore for a period of 20 days.
14. PW.4 - Prabhakara has deposed that on 23.01.2007 at about 5.30 p.m. accused Nos. 1 to 12 formed themselves into an unlawful assembly armed with deadly weapons, picked up quarrel, some of the persons pelted stones by standing on the terrace of accused no.1. Accused no.5 - Venkataravana assaulted him with club on his back, accused no.4 assaulted him with iron rod near his eyebrow and accused no.6 assaulted him with stone and accused nos.5, 6, and 8 confined him in a house with an intention to commit murder and on intervention of some other persons they released him.
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15. PW.5 Venkataravanappa has deposed in his evidence that when they were performing Sankaranti festival on 23.01.2007, accused picked up quarrel and hurled stones at them by standing on the terrace of house of accused no.1 and they caused obstruction to the drum beaters and accused no.1 assaulted him with club on his head and accused no.9 - Seenappa assaulted him with stone on his back as a result he fell unconscious.
16. PW.6 to PW.12 in their evidence have reiterated the same facts. PW.13 - Dr.Varalakshmi has deposed that on 24.01.2007 during the night hours she examined PW.8 Gopalakrishna and found injuries on his body as mentioned in Ex.P3- wound certificate and she also examined PW.9 - Krishnamurthy and found injuries on his body as mentioned in Ex.P4 - wound certificate.
17. PW.15 - Dr.Sampath Kumar has deposed that he examined PW.4 - Prabhakara on 23.01.2007 at about 9.40 p.m. and found injuries as mentioned in Ex.P5 - wound certificate and further he examined PW.7 - Kittappa, PW.6 - : 11 : Narasimhappa, PW.1 - Venkataravanappa and found injuries as shown in Ex.P6 to 8 - wound certificates respectively.
18. PW.17 - Dr.Prakash, Assistant Professor working in Bangalore Medical College, has deposed that he examined PW.2 Venkatappa on 24.01.2007 and found injuries on the body of PW.2 Venkatappa i.e., fracture on frontal sinesis outer table, lacerated wound over the middle of fore head, to that effect, he got issued wound certificate as per Ex.P13. So also, he examined PW.3 - Munivenkatappa on 24.01.2007 and found lacerated wound over the left side of the face, deformity fracture mandible and issued Ex.P.14 - wound certificate.
19. It is pertinent to note that during the cross- examination of PW.1, it is stated that 110 houses situate at Mattakannasandra village, persons belonging to several communities are residing. Except these material witnesses no witness has spoken about the incident. As according to the evidence of PW.1 on the terace of house of accused No.1, some other persons were also present along with accused but he is unable to say the names of other persons who involved in the crime. Therefore, the court below held that there is a doubt : 12 : about involvement of accused Nos.1 to 3, 5 to 10 and 12 in the crime. Further PW.1 in his evidence has deposed that he do not know who caused bodily pain to him with stone. Admittedly, PWs.2, 3 and 5 sustained bleeding injuries and their cloths were stained with blood but the same were not produced before the police or doctor. Similarly, blood was spilled on the ground, but was not recovered by the police inspite of showing cloths to police. Admittedly, five persons were also admitted to the Government Hospital, Srinivasapura, for treatment, who are accused in S.C.No.41/2010. All these material contradictions have not been noticed by the court below while convicting the appellants.
20. In the cross-examination of PW.2 to PW.9, they have deposed that they are unable to say the names of the persons who were gathered on the terrace of accused no.1 - Srinivasa Reddy and unable to say as to who were holding which deadly weapons like stones, clubs, choppers. It is stated that PWs.1 to 5 are the followers of JDS party and accused are the followers of Congress party. PW.4 in his cross-examination has admitted that they are followers of JDS party and accused Nos.1 to 12 : 13 : are the followers of Congress party who are involved in S.C.NO.41/2010.
21. The court below failed to notice that the evidence of PW.5 who is a prime witness has deposed that he is unable to say as to who have sustained injures in the incident and even he is unable to say the names of persons who were standing on the terrace of house of accused No.1 and among 13 persons, 5- 6 persons caused injuries and to that effect evidence of PW.5 was not in consonance with the evidence of other witnesses. As per the evidence of PW.5, his shirt was stained with blood, but police have not seized that shirt. The court below having held that evidence of PW.5 consists of omissions and contradictions with regard to the allegations, committed error in convicting the appellants/accused.
22. The court below failed to notice that in the cross- examination PW.10 stated that accused persons pelted number of stones, as a result mob dispersed and seeing PW.3 - Munivenkatappa came to rescue as he fell on the ground and the cloths of PW.3 were stained with blood but the same was not produced before the court. As per the evidence of PW.10, : 14 : MO.5 - tooth was handed over to police during night hours at Government Hospital and later it was received by the police at Mattakannasandra village while drawing mahazar, which creates doubt. Having made such an observation and noticing discrepancies in the case of prosecution, the Court below committed error in convicting accused No.4 and 11 for the offences alleged against them.
23. The court below while considering the evidence of PW.13 - Dr.Varalakshmi who deposed that on 24.01.2007 during night hours she examined PW.8 - Gopalakrishna and found injuries on his body as mentioned in Ex.P3, wound certificate and she also examined PW.9 Krishnamurthy and found injuries on his body as mentioned in Ex.P4 - wound certificate, and held that there is no cogent and corroborative evidence to prove the fact of injuries on the body of PWs.8 and 9, and acquitted accused Nos.1 to 3, 5 to 10 and 12, but committed an error in convicting accused no.4 and 11.
24. PW.14 -Ramappa has deposed that he subscribed his signature on Ex.P2 mahazar at Police Station and he does not know the contents of said mahazar and he has not signed the : 15 : mahazar at spot and accordingly, he turned hostile to the case of the prosecution. But the court below erred in holding that the evidence of PW.14 will not affect the case of prosecution.
25. The court below while appreciating the evidence of PW.16, Sub Inspector of Police that he had been to Government Hospital, Srinivasapura and that on 23.01.2007 at about 10.30 p.m. he enquired PWs 1 to 8 and on the basis of the statement given by PW.1 - Venkataravanappa, he registered a criminal case and forwarded Ex.P10 - FIR, to the court and he drew Mahazar as per Ex.P2 and seized MOs 1 to 5. In the cross examination of PW.16 he has admitted that there are omissions and improvements in the depositions of some of the witnesses. But the court below failed to consider this part of the evidence while convicting accused no.4 and 11.
26. The court below erred in coming to the conclusion that PW.2 - Venkatapappa was assaulted by accused No.4 - Ananda Reddy with a chopper on his fore head and caused grievous injury and accused no.11 - Gopalappa assaulted PW.3 - Munivenkatappa with an iron rod and as a result he lost one : 16 : teeth. The court below erred in holding that due to the illegal acts of accused no.4 and 11, PW.2 and 3 have sustained grievous injury and the same was attracted by the ingredients of Section 326 of IPC. The court below having noticed that as per the evidence of witnesses and as per the evidence of PW.17
- Doctor, there was no grievous injury on the vital part of the body, ingredients of Section 307 of IPC will not attract, committed error in convicting the accused no.4 and 11 under Section 326 of IPC. Even after holding that there are so many contradictions and omissions with regard to allegations made against accused No.1 to 3, 5 to 10 and 12, and acquitted them.
27. The court below held acquittal in respect of accused no.1 to 3, 5 to 10 and 12 as these accused were also said to be participated in the incident. Whereas S.C.No.41/2010 said to be tried with the case in S.C.No.137/2008 as it was a case and counter case. In S.C.No.41/2010 all the accused were acquitted but accused no.4 and 11 have been convicted in S.C.No.137/2008. PWs.1 to 5 are the followers of JDS Party and accused Nos. 1 to 12 are the followers are Congress party. The court below observed that there is political rivalry between : 17 : two parties and held that evidence of PW.1 is not sufficient to convict accused Nos.1 to3, 5 to 10 and 12, but erred in convicting accused no.4 and 11. The evidence put forth by the prosecution appears to be camouflage and creates clouds of doubt over the case of prosecution. The same requires to be re- appreciated by the court below. All these accused are placed in similar footing during trial. Therefore, it is said that there is perversity in the judgment rendered by the court below by only convicting accused no.4 and 11 for the offences punishable under Section 326 of IPC and acquitting other accused.
28. In this appeal it requires reappreciation of the entire evidence on record, as wherein the court below has misdirected and misread the entire evidence of the prosecution witnesses. However, in the totality of the circumstances of the case and having gone through the entire evidence on record, I am of the opinion that the prosecution has not placed cogent and corroborative evidence to probabalise that these accused have caused injuries to PW.2 by assaulting him with means of M.O.1
- chopper on his fore head and assaulting PW.3 with means of M.O.2 - iron rod. Therefore, for the aforesaid reasons and : 18 : findings, I am of the considered opinion that these accused are deserving for acquittal as they also stand in similar footing as that of accused no.1 to 3, 5 to 10 and 12.
For the aforesaid reasons, the appeal is allowed. The impugned judgment of conviction dated 09.02.2011and order of sentence dated 10.02.2011 passed by the I Addl.District and Sessions Judge, Kolar in S.C.No.137/2008 is hereby set-aside. Consequently, the accused are hereby acquitted for the charges levelled against them. Bail bonds shall stand cancelled.
Sd/-
JUDGE dkb