Karnataka High Court
Umakantha @ Kantha S/O Jothiraj vs State Of Karnataka By Madiwala Ps on 31 October, 2013
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 31ST DAY OF OCTOBER 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL APPEAL No.2192/2006 c/w
CRIMINAL APPEAL Nos.1869/2006 & 2183/2006
CRL.A.No.2192/2006
BETWEEN:
UMAKANTHA @ KANTHA
S/O JOTHIRAJ
AGED ABOUT 18 YEARS
NO.141, SOMESWARA COLONY
BANGALORE. ... APPELLANT
(BY SRI RAVI K, ADV. FOR SRI YOUNOUS ALIKHAN, ADV.)
AND:
STATE OF KARNATAKA
BY MADIWALA P.S.
BANGALORE, REP. BY THE
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
HIGH COURT BUILDINGS
BANGALORE. ... RESPONDENT
(BY SRI B T VENKATESH, SPP-II)
THIS APPEAL IS FILED UNDER SECTION 374 CR.P.C.,
AGAINST THE JUDGEMENT DATED 26.8.06 PASSED BY
PRESIDING OFFICER, FAST TRACK COURT-IX, BANGALORE IN
S.C.NO.474/05. CONVICTING THE APPELLANT/ACCUSED NO.2
FOR OFFENCES PUNISHABLE UNDER SECTIONS 143, 147, 148,
307 R/W 149 IPC & ETC.
2
CRL.A No.1869/2006
BETWEEN:
GIRI @ GIRISHA @ GIRIPRASANNA
S/O SRINIVASA, 22 YEARS
R/AT NO. C-6, HOUSE OF
MUNIMADAPPA, 14TH MAIN
VENKATESWARA EXTENSION
MADIWALA, BANGALORE - 560 068. ... APPELLANT
(BY SRI G M SRINIVASAREDDY, ADV.)
AND:
STATE OF KARNATAKA
BY MADIWALA POLICE. ... RESPONDENT
(BY SRI B T VENKATESH, SPP-II)
THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C.,
AGAINST THE JUDGMENT DATED 26.8.06 PASSED BY
PRESIDING OFFICER, FAST TRACK COURT-IX, BANGALORE IN
S.C.NO.474/05. CONVICTING THE APPELLANT/ACCUSED NO.3
FOR OFFENCES PUNISHABLE UNDER SECTIONS 143, 147, 148,
307 R/W 149 IPC & ETC.
CRL.A No.2183/2006
BETWEEN:
RAMESHA
S/O BOLEGOWDA
AGED ABOUT 26 YEARS
R/O. ALTAF HOUSE, C/O. ANJANAPPA
BEHIND SRINIVASA BAR
HALE MADIWALA, BANGALORE. ... APPELLANT
(BY SRI C V NAGESH, SENIOR ADVOCATE & SRI K R LANKESH,
ADV.)
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AND:
STATE OF KARNATAKA
BY THE STATION HOUSE OFFICER
MADIWALA POLICE STATION
BANGALORE. ... RESPONDENT
(BY SRI B T VENKATESH, SPP-II)
THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C.,
AGAINST THE JUDGMENT DATED 26.8.06 PASSED BY
PRESIDING OFFICER, FAST TRACK COURT-IX, BANGALORE IN
S.C.NO.474/05 CONVICTING THE APPELLANT/ACCUSED NO.4
FOR OFFENCES PUNISHABLE UNDER SECTIONS 143, 147, 148,
307 R/W 149 IPC & ETC.
THESE APPEALS COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants in Crl.A 2192/2006, Crl.A 1869/2006 and Crl.A 2183/2006 were arrayed as accused no.2 to 4 in S.C.No.474/2005. They were tried along with accused no.1 (died during pendency of trial), for offences punishable under Sections 143, 147, 148, 324, 307 r/w 149 IPC.
2. The learned Sessions Judge convicted accused no.2 to 4 for offences for offences punishable under Sections 143, 147, 148, 324, 307 r/w 149 IPC and sentenced them to undergo imprisonment for periods ranging from 3 months to 4 years and also imposed fine with default sentence. It was 4 also ordered that substantive sentence of imprisonment shall run concurrently.
3. I have heard Sri.Ravi.K, learned counsel for accused no.2, Sri.G.M.Srinivasa Reddy, learned counsel for accused no.3 and Sri.C.V.Nagesh, learned Senior Counsel for accused no.4 and the learned State Public Prosecutor for the State.
4. In brief, the case of prosecution is as follows:-
On 25.12.2004 at about 5.00 p.m., PW.4-Mohin Khan was proceeding in a car near Chocolate Factory, Tavarekere, Bangalore. The accused being members of unlawful assembly wrongfully restrained PW.4 and assaulted him with deadly weapons such as long, knife and swords and caused injuries to him with such intention and knowledge that by their assault if they had caused death of PW4, they would have been held guilty of an offence punishable under section 302 IPC, thereby the accused committed an offence punishable under Section 307 IPC. The injured was shifted to St.John's Hospital by PW3-Peer Khan who set the law into motion by lodging first information against the accused and 5 7 to 8 unknown persons. After investigation, final report was filed against accused no.1 to 5 for the aforestated offences.
5. As already stated, accused no.1 died during pendency of trial. In view of conviction of accused no.2 to 4 for the aforestated offences, the following points would arise for determination:
1) Whether the prosecution has proved that accused no.2 to 4 along with accused no.1 had formed unlawful assembly and in furtherance of common object of unlawful assembly, assaulted PW.4-Mohin Khan with intention and knowledge, by such assault if they had caused death of PW4, they would have been held guilty of an offence punishable under section 302 IPC, thereby committed an offence punishable under Section 307 r/w Section 149 IPC ?
2) Whether the prosecution has proved that in furtherance of common object of unlawful assembly, accused no.1 (since dead) and accused no.2 to 4 6 assaulted the injured PW.4- Mohin Khan with deadly weapons such as Long and Swords and caused injuries to PW.4- Mohin Khan, thereby accused no.2 to 4 committed an offence punishable under Section 324 r/w 149 IPC ?
3) Whether the prosecution has proved that in the course of same transaction accused no.2 to 4 being the members of unlawful assembly were in possession of deadly weapons and wielded deadly weapons on PW.4
- Mohin Khan, thereby accused no.2 to 4 have committed offences punishable under Sections 143, 147 and 148 IPC ?
4) Whether the learned trial judge has properly appreciated the evidence on record ?
5) Whether the impugned judgment calls for interference?
6) What Order ?
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6. In brief, the case of prosecution is as follows:
Accused no.1 (since deceased) was demanding PW4 to pay ransom (Hafta). PW.4 had refused to pay Hafta. Therefore, on the date of incident ie., on 25.12.2004 at about 5.00 p.m., when PW.4 (a taxi driver) was proceeding in a car near Chocolate factory, Tavarekere within the jurisdiction Madiwala P.S., accused no.1 and others wrongfully restrained him. Accused no.1 assaulted him with a sword and accused no.2 assaulted him with a knife and caused injuries. Accused no.3 and two others pelted stones at him and caused injures and he fell unconscious.
At the first instance, PW.4 was shifted to Spurthy Nursing Home. Thereafter, PW4 was shifted and admitted in St. Johns Hospital. PW.3 (friend of PW.4) lodged the first information against the accused and 7 -8 unknown persons.
In order to bring home the guilt of accused, the prosecution has relied upon evidence of PW's.4, 5 and 10, medical evidence of PW.2-Dr.C.Krishna Rao and the evidence of investigation officer.8
7. PW-2 Dr.C.Krishna Rao, Sr.Casualty Medical Officer of St.John's Hospital has deposed: that on 25.12.2004 at 5.45 p.m. he examined PW-4 Mohin Khan in St.John's hospital and found following injuries:
1) Lacerated wound over the left side of foreshead active blleding present measuring 2 cms. X 1 cm.
2) Puncturered penetrating wound right side of forehead with fracture of skull palpable.
3) Lacerated wound measuring 8 cms. X 1 cm.
on back of right elbow joint.
4) Incised wound on back of right middle finger with Nailavulsed 1 cms. X 1 cm.
5) Lacerated wound over the back to the left of spine and medical to scapula measuring 2 cms. X 1 cm.
6) Lacerated wound measuring 10 cms. X 1 cms. Over right lower chest extending down to right Hypochondrium.
7) Penetrating injury measuring 8 cms x 0.5 cm right over upper chest, haemotoma present.
8) Lacerated wound over the left hyochondrium and lower chest, omentum seen protruding outside measuring 5 cms. X 1 cm.
9PW-2 has deposed that he had issued wound certificate as per Ex.P2. PW-2 deposed that aforesaid injuries could be caused by assault with long and knife. PW-2 after seeing the long and knife (marked as Exs.MO1 and 2 before the Trial Court) has deposed that the injuries found on PW-4 could have been caused due to assault with long and knife. The evidence of PW-2 has remained uncontroverted. During cross-examination it was elicited from PW-2 that history of injuries was given as due to assault by accused No.1 Snake Raja and other persons. At this juncture it is necessary to state that PW-4 Mohin Khan had suffered multiple injuries, as many as eight injuries. In the circumstances, much importance cannot be given to history of injuries to decide complicity or otherwise of accused.
8. PW-4 was the injured witness. PW-4 has deposed that on 25.12.2004 at 5 p.m. he was proceeding in a car in front of chocolate factory near Tavarekere, accused 1 to 5 along with other three persons stood across his car, accused No.1 and 2 demanded money (ransom) from PW-4, when PW-4 refused to give money, accused No.1 Snake Raju 10 assaulted on the chest and back of PW-4 with a knife. Accused No.2 Umakantha assaulted on the shoulder, head and right elbow of PW-4 with a long. Accused No.5 Naveen (since absconding) stabbed on his stomach. Accused No.3 and two to three persons pounded on the head and lower limbs of PW-4 with stones.
PW-4 has deposed; that at the first instance he was shifted to Spurthy Nursing Home and thereafter he was admitted and treated in St. Johns hospital for a period of two months. PW-4 has identified the accused.
During cross examination by the learned counsel for accused 1 and 2, PW-4 has reiterated the version given in examination in chief. PW-4 had deposed that accused 1 and 2 demanded ransom from him and on his refusal to pay money, accused 1 and 2 assaulted him with knife and long. During cross examination it is not elicited from PW-4 that he had enmity with accused 1 and 2 to falsely implicate them. PW-4 being the injured would be least disposed to falsely implicate accused 1 and 2 leaving aside the real assailants.
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Yet the possibility of false implication of other accused can not be ruled out.
9. The evidence of PW-4 that accused No.3, accused No.4 and two or three persons pounded stones on his head and assaulted him with stone does not find corroboration from medical evidence and there were no corresponding injuries on PW-4. PW-2 Dr.C.Krishna Rao has deposed that injuries found on PW-4 could have been caused by knife and chopper. PW-4 has not deposed that accused had formed unlawful assembly to cause injuries to him. Therefore evidence of PW-4 is not sufficient to prove that accused 3 and 4 and three others had assaulted him with stones. The prosecution has not seized stones said to have been used by accused 3 and 4, on the other hand the prosecution has seized a stone from the place of incident. It looks improbable that accused 3 and 4 had used single stone to assault PW-4. PW-4 has admitted that he knew accused 3 and 4 by their names, however in the first information names of accused Nos. 3 and 4 are not stated.
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10. PW-5 Babajaan is stated to be an eye witness. PW-5 has deposed that accused No.1 (since deceased) assaulted PW-4 with a knife, accused No.2 Umakantha assaulted on the head and shoulder of PW-4 with a long and accused 5 (since absconding) stabbed on the stomach of PW-4. Accused 3 and 4 assaulted PW-4 with a stone. PW-4 has deposed that he did not notice the manner of assault by accused 3 and 4.
During cross examination, PW-5 has deposed that he knew accused No.3 and 4. His statement was recorded by the police on 27.12.2004. There was two days delay in recording statement of PW-5 under Section 161 Cr.P.C., for which there is no satisfactory explanation. At this juncture, it is necessary to recall evidence of PW-4. PW-4 has deposed that accused 3 and 4 pounded on his head, shoulder and lower limbs with stones. As already stated prosecution has not seized both the stones. The stone seized by the investigation officer is marked as MO-5. It looks improbable that accused 3 and 4 had assaulted PW-4 with a single stone. PW-2 Dr.C.Krishna Rao has not deposed that PW-4 13 had suffered injuries which were caused due to assault with stones. There were no corresponding injuries on the person of PW-4.
11. The prosecution has examined PW-9 Ameer Pasha as an eye witness. PW-10 has deposed that accused No.1 Snake Raju (since deceased) assaulted PW-4 with a knife and accused No.2 Umakantha assaulted on the head and shoulder of PW-4 with a chopper. Accused No.5 (since absconding) assaulted PW-4-Mohin Khan with a stone. During cross-examination, PW-10-Younis Baig, has deposed that accused No.3 and 4 were carrying size stones which is not the case put-forth by the prosecution. As already stated PW-4 had not suffered injuries which could have been caused by hitting him with stones. In the circumstances, the evidence of PW-10 that accused 3 and 4 assaulted PW-4 with size stones (masonry stones) looks highly improbable. The learned trial Judge without noticing these material discrepancies in the evidence adduced by the prosecution and lacuna in medical evidence of PW-2 has held that accused 3 and 4 had assaulted PW-4 with stones and 14 accused Nos.3 and 4 were the members of unlawful assembly and the common object of unlawful assembly was to commit murder of PW-4.
12. The law is fairly well settled that in order to prove that accused were members of unlawful assembly, the evidence adduced by the prosecution must be cogent and consistent. It is also necessary for the prosecution to adduce cogent and consistent evidence of two or more witnesses regarding the presence and participation of accused as members of unlawful assembly.
13. In a decision reported in AIR 1965 SC 202 (in the case of Masalti -v- State of Uttar Pradesh) the Supreme Court has held:
"(f) Evidence Act (1872), S.134- Number of witnesses.
It is true that under the Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. But where a 15 criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical, but it cannot be treated as irrational or unreasonable. It is, no doubt, the quality of the evidence that matters and not the number of witnesses who give evidence. But sometimes it is useful to adopt a mechanical test. (para 16)
(g) Penal Code (1860), Suit schedule.141- 149 - Unlawful assembly - Whether person is member of unlawful assembly - Tests.
That the mere presence in an assembly does not make a person, who is present, a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under S.142 IPC cannot be read as laying down a general proposition of law that unless an overt act is proved against a person who is alleged to be a member of an unlawful assembly, it cannot 16 be said that he is a member of such an unlawful assembly. What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by S.141, IPC. An assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of S.141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by S.141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. In fact, S.149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly, or such as the members of that assembly knew to be likely to 17 be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by S.149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. The observations in (S) AIR 1956 SC 181. Explained. (Para 17).
In the case on hand, prosecution has failed to adduce cogent and consistent evidence to prove that accused No.1 (since deceased) and accused 2 to 4 and accused No.5 (since absconding) were the members of unlawful assembly. Therefore the learned trial Judge should not have fastened vicarious liability on accused No.3 and 4.
14. In the discussion made supra, I have held that there is no consistent credible evidence in proof of presence and participation of accused No.3. The evidence of injured witness (PW-4) and eye witnesses that accused 3 and 4 assaulted PW-4 with stones does not find corroboration from 18 the medical evidence. The learned trial Judge without noticing the discrepant and inconsistent evidence adduced by prosecution has held accused No.3 and 4 were the members of unlawful assembly and they were guilty of rioting and they are vicariously liable for the offences committed by other accused. Therefore, the impugned Judgment as it relates to conviction of accused Nos. 3 and 4 cannot be sustained.
15. Now adverting to the appeal filed by accused No.2 it is necessary to state that there is consistent evidence that accused No.2 had assaulted PW-4 with long. PW-4 has deposed that he knew accused 1 and 2. On the date of incident accused 1 and 2 wrongfully restrained him and demanded money (ransom) from him. When PW-4 refused to pay money, Accused No.1-Snake Raja assaulted on the head and shoulders of PW-4 with a long. PW-5 has deposed that accused No.2 had assaulted on the head and shoulder of PW-4 with a long. The evidence of PW-4 and 5 finds corroboration from the evidence of PW-10 who has deposed 19 that accused No.2 assaulted on the head and shoulder of PW-4 with a chopper.
During cross-examination of PW-4 by the learned counsel for accused No.2, it is not elicited from PW-4 that he had enmity with accused No.2 to falsely implicate him. As already stated PW-4 being the injured would be least disposed to falsely implicate accused No.2 leaving aside the real assailant. The evidence of PW-4 finds corroboration from the evidence of PW-5 and PW-10.
During cross examination of PW-5 by learned counsel for accused No.2, PW-5 has denied that PW-4 is his relative and friend. From the evidence of PW-5, we found that he is totally an independent witness. He was neither friendly with PW-4 nor he had enmity with accused No.2. Therefore, there are no reasons to discard the evidence of PW-5. PW-10 is also an independent eye witness. During cross-examination, PW-10 has denied the suggestion that he had given false evidence against accused No.2. Therefore, the prosecution has proved that accused No.2 had assaulted PW-4 with a long.
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16. From the evidence of prosecution case it is not clear that the fatal injuries found on PW-4 were inflicted by accused No.1 (since dead), or accused No.2 or accused No.5 (since absconding). On overall appreciation of evidence of injured and eye witnesses, we do not find that accused No.2 had any motive to commit the murder of PW-4. It is not possible to hold that accused No.2 was a member of unlawful assembly. In the circumstances, accused No.2 cannot be held guilty of offences punishable under Sections 143, 147 and 148 IPC. Accused cannot be held guilty of an offence punishable under Section 307 r/w 149 IPC. The evidence adduced by the prosecution is not sufficient to establish that accused No.2 had caused grievous injuries to PW-4. The prosecution has proved that accused No.2 had assaulted PW-4 with a deadly weapon and caused injuries to him. Therefore, I hold that the prosecution has proved that accused No.2 had committed an offence punishable under Section 324 IPC.
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In view of the foregoing discussion I accept the appeals filed by PWs 3 and 4 and accept the appeal filed by accused 2 in part.
17. In the result, I pass the following:
ORDER Appeal Nos.1869/2006 and 2183/2006 are accepted. Appeal No.2192/2006 is accepted in part.
The impugned Judgment as it relates to conviction of accused 3 and 4 for offences punishable under Sections 143, 147, 148, 307 r/w 149 IPC is set-aside. Accused 3 and 4 are acquitted of offences punishable under Sections 143, 147, 324, 307 r/w 149 IPC.
Crl.Appeal No.2192/2006 filed by accused No.2 is accepted in part. The impugned Judgment is modified. Accused No.2 is acquitted of offences punishable under Section 143, 147, 148, 307 r/w 149 IPC. Accused No.2 is convicted for an offence punishable under Section 324 IPC. The period of detention undergone by accused No.2 during trial and during pendency of appeal is held as sufficient sentence of imprisonment for an offence punishable under 22 section 324 IPC. The accused No.2 is sentenced to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for a period of three months for an offence punishable under section 324 IPC.
The bail bonds executed by accused 3 and 4 are cancelled. The fine amount, if any, deposited by accused 3 and 4 shall be refunded to them.
Sd/-
JUDGE Np/-ln