Karnataka High Court
Puttegowda vs The State Of Karnataka By The Police Of on 21 January, 2013
Bench: K.L.Manjunath, H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21ST DAY OF JANUARY, 2013
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE H.S.KEMPANNA
CRIMINAL APPEAL NOS.1680/2007
C/W 1700/2007(C)
IN CRL.A.No.1680 OF 2007:
BETWEEN:
1 PUTTEGOWDA
S/O LATE HANUMEGOWDA
AGED ABOUT 50 YEARS
2 GURUPADA @ GURUPADEGOWDA
S/O SANNAGOWDA
AGED ABOUT 40 YEARS
3 ESHWARA
S/O HANUMEGOWDA
AGED ABOUT 40 YEARS
4 MAHALINGA @ EREGOWDA
S/O HANUMEGOWDA
AGED ABOUT 50 YEARS
ALL R/AT UPPALLI VILLAGE,
KATTAYA HOBLI, HASSAN TALUK
AND DISTRICT,
... APPELLANTS
(BY SRI : C.H. JADAV, SR. ADV. FOR
SRI. K A CHANDRASHEKAR, ADV.,)
2
AND:
1 THE STATE OF KARNATAKA
BY THE POLICE OF
GORUR POLICE STATION,
HASSAN DISTRICT
... RESPONDENT
(BY SRI: P.M. NAWAZ, ADDL. SPP)
THIS CRL.A FILED U/S.374(2) CR.P.C BY THE
ADVOCATE FOR THE APPELLANTS AGAINST THE
JUDGMENT DT.11/12.9.2007 PASSED BY THE P.O., &
ADDL.SJ., FTC-I, HASSAN, IN S.C.NO.31/02 - CONVICTING
THE APPELLANT/ACCUSED NO.10 & 11 FOR THE
OFFENCE P/U/S.143, 147, 148, 341, 302, 307, 427 R/W.
149 IPC AND ACCUSED 16 & 18 FOR THE OFFENCE
P/U/Ss.143, 147, 148, 341, 427, 302, 307 AND 114 R/W.
149 OF IPC. AND SENTENCING THEM TO UNDERGO S.I.
FOR 3 MONTHS EACH U/S.143 OF IPC. FURTHER
SENTENCING THEM TO UNDERGO S.I. FOR 3 MONTHS
EACH U/S.147 OF IPC R/W. 149 OF IPC. FURTHER
SENTENCING THEM TO UNDERGO S.I. FOR 3 MONTHS
EACH U/S.148 OF IPC R/W.149 OF IPC. AND FURTHER
SENTENCING THEM TO UNDERGO S.I. FOR 1 MONTH
EACH U/S.341 IPC R/W.149 IPC. FURTHER SENTENCING
THEM TO UNDERGO S.I. FOR 3 MONTHS EACH P/U/S.427
IPC R/W. 149 IPC. AND SENTENCING ACCUSED NO.10 &
11 TO UNDERGO LIFE IMPRISONMENT EACH AND TO PAY
FINE OF `2,000/- EACH I.D., TO PAY FINE AMOUNT, TO
UNDERGO S.I. FOR 6 MONTHS EACH P/U/S.302 IPC R/W.
149 IPC. AND THE ACCUSED NO.16 & 18 SENTENCING TO
UNDERGO LIFE IMPRISONMENT EACH AND TO PAY FINE
OF `2,000/- EACH I.D., TO PAY FINE AMOUNT, TO
UNDERGO S.I. FOR 6 MONTHS EACH U/S.302 & 114 OF
IPC R/W. 149 OF IPC. AND ACCUSED 10 & 11 SETENCED
TO UNDERGO R.I. FOR 5 YEARS EACH & TO PAY FINE OF
`2,000/- EACH I.D., TO PAY FINE AMOUNT, TO UNDERGO
S.I. FOR 6 MONTHS EACH U/S.307 IPC R/W. 149 OF IPC.
AND THE ACCUSED 16 & 18 SENTENCED TO UNDERGO
R.I. FOR 5 YEARS EACH AND TO PAY FINE OF `2,000/-
EACH I.D., TO PAY FINE AMOUNT, TO UNDERGO S.I. FOR
6 MONTHS EACH P/U/S.307 AND 114 OF IPC R/W. 149 OF
3
IPC. ALL THE SUBSTANTIVE SENTENCES ARE HEREBY
ORDERED TO RUN CONCURRENTLY.
IN CRL.A. No.1700 OF 2007:
BETWEEN:
1 RAVI
S/O RANGEGOWDA
AGED ABOUT 35 YEARS, OCC;AGRICUTLURE,
R/O UPPALI VILLAGE, KATTAYA HOBLI,
TALUK AND DISTRICT; HASSAN.
2 RAJA @ RAJEGOWDA @ BETTA
AGED ABOUT 35 YEARS
OCC;AGRICUTLURE,
R/O UPPALI VILLAGE, KATTAYA HOBLI,
TALUK AND DISTRICT; HASSAN.
3 NAGARAJA S/O HANUMEGOWDA
AGED ABOUT 37 YEARS
OCC;AGRICUTLURE,
R/O UPPALI VILLAGE, KATTAYA HOBLI,
TALUK AND DISTRICT; HASSAN.
4 BASAVEGOWDA @ NAGA S/O HANUMEGOWDA
AGED ABOUT 52 YEARS
OCC;AGRICUTLURE,
R/O UPPALI VILLAGE, KATTAYA HOBLI,
TALUK AND DISTRICT; HASSAN.
5 SHIVANNA S/O MALLEGOWDA @ KARIGOWDA
AGED ABOUT 55 YEARS
OCC;AGRICUTLURE,
R/O UPPALI VILLAGE, KATTAYA HOBLI,
TALUK AND DISTRICT; HASSAN.
6 ASHOKA S/O UPPEGOWDA
AGED ABOUT 28 YEARS
OCC;AGRICUTLURE,
R/O UPPALI VILLAGE, KATTAYA HOBLI,
TALUK AND DISTRICT; HASSAN.
4
7 KUMARA S/O LATE MALLESHAGOWDA
AGED ABOUT 25 YEARS
OCC;AGRICUTLURE,
R/O UPPALI VILLAGE, KATTAYA HOBLI,
TALUK AND DISTRICT; HASSAN.
8 THIMMAIAH @ SURESH @ MANJEGOWDA
S/O MALLEGOWDA
MAJOR,
OCC;AGRICUTLURE,
R/O UPPALI VILLAGE, KATTAYA HOBLI,
TALUK AND DISTRICT; HASSAN.
9 DEVARAJA S/O HANUMEGOWDA
AGED ABOUT 37 YEARS,
OCC;AGRICUTLURE,
R/O UPPALI VILLAGE, KATTAYA HOBLI,
TALUK AND DISTRICT; HASSAN.
10 SWAMY @ RANGASWAMY S/O MALLEGOWDA
AGED ABOUT 33 YEARS,
OCC;AGRICUTLURE,
R/O UPPALI VILLAGE, KATTAYA HOBLI,
TALUK AND DISTRICT; HASSAN.
11 PARAMESHA @ THENGINAKAYI PUTTAPPA
S/O MALLEGOWDA
AGED ABOUT 40 YEARS,
OCC;AGRICUTLURE,
R/O UPPALI VILLAGE, KATTAYA HOBLI,
TALUK AND DISTRICT; HASSAN.
12 APPANNA S/O RUDREGOWDA
AGED ABOUT 40 YEARS,
OCC;AGRICUTLURE,
R/O UPPALI VILLAGE, KATTAYA HOBLI,
TALUK AND DISTRICT; HASSAN.
13 THIRTHESHA S/O EREGOWDA
AGED ABOUT 40 YEARS,
OCC;AGRICUTLURE,
R/O UPPALI VILLAGE, KATTAYA HOBLI,
TALUK AND DISTRICT; HASSAN.
5
14 CHALUVAMURTHY S/O NARASIMHACHAR
AGED ABOUT 33 YEARS,
OCC;AGRICUTLURE,
R/O UPPALI VILLAGE, KATTAYA HOBLI,
TALUK AND DISTRICT; HASSAN.
... APPELLANTS
(BY SRI : R B DESHPANDE, ADV.,)
AND:
1 THE STATE OF KARNATAKA
GORUR POLICE,
... RESPONDENT
(By Sri: P.M. NAWAZ, ADDL. SPP)
THIS CRL.A FILED U/S.374(2) CR.P.C BY THE
ADVOCATE FOR THE APPELLANTS AGAINST THE
JUDGMENT DT.11/12.9.2007 PASSED BY THE P.O., &
ADDL.SJ., FTC-I, HASSAN IN S.C.NO.31/02 - CONVICTING
THE APPELLANTS/ACCUSED NO.2 TO 9, 12 TO 14 AND 19
FOR THE OFFENCE P/U/Ss.143, 147, 148, 341, 302, 307,
427 R/W. 149 IPC AND ACCUSED NO.15 & 17 FOR THE
OFFENCE P/U/Ss.143, 147, 148, 341, 427, 302, 307 AND
114 R/W. 149 OF IPC. AND SENTENCING ACCUSED NOS.2
TO 9, 12 TO 15, 17 AND 19 AND ACCUSED NOS.15 & 17 TO
UNDERGO S.I. FOR 3 MONTHS EACH U/S.143 OF IPC.
AND FURTHER SENTENCING THEM TO UNDERGO S.I. FOR
3 MONTHS EACH P/U/S.147 IPC R/W. 149 IPC. AND
SENTENCING THEM TO UNDERGO S.I. FOR 3 MONTHS
EACH P/U/S.148 IPC R/W. 149 OF IPC. AND FURTHER
SENTENCING THEM TO UNDERGO S.I. FOR ONE MONTH
EACH P/U/S.341 IPC R/W. SEC.149 IPC; AND FURTHER
SENTENCING THEM TO UNDERGO S.I. FOR 3 MONTHS
EACH FOR THE OFFENCE P/U/S.427 OF IPC R/W. 149 OF
IPC. AND FURTHER THE ACCUSED NOS.2 TO 9 AND 12 TO
14 & 19 ARE HEREBY SENTENCED TO UNDERGO LIFE
IMPRISONMENT EACH AND TO PAY FINE OF `2000/-
EACH I.D., TO PAY FINE AMOUNT, TO UNDERGO S.I. FOR
6 MONTHS EACH P/U/S.302 IPC R/W. 149 OF IPC. AND
THE ACCUSED NOS.15 & 17 ARE HEREBY SENTENCED
6
TO UNDERGO LIFE IMPRISONMENT EACH AND TO PAY
FINE OF `2000/- EACH I.D., TO PAY FINE AMOUNT, TO
UNDERGO S.I. FOR 6 MONTHS EACH P/U/Ss.302 AND 114
OF IPC R/W. 149 OF IPC. AND THE ACCUSED NOS.2 TO 9
AND 12 TO 14 & 19 ARE HEREBY SENTENCED TO
UNDERGO R.I. FOR 5 YEARS EACH AND TO PAY FINE OF
`2,000/- EACH I.D., TO PAY FINE AMOUNT, TO UNDERGO
S.I. FOR 6 MONTHS EACH P/U/S.307 IPC R/W. SEC. 149
OF IPC. AND ACCUSED NOS.15 & 17 ARE HEREBY
SENTENCED TO UNDERGO R.I. FOR 5 YEARS EACH AND
TO PAY FINE OF `2000/- EACH I.D., TO PAY FINE
AMOUNT, TO UNDERGO S.I. FOR 6 MONTHS EACH
U/S.307 & 114 IPC R/W. 149 OF IPC. ALL THE
SUBSTANTIVE SENTENCES ARE HEREBY ORDERED TO
RUN CONCURRENTLY AND THE APPELLANTS/ACCUSED
PRAY THAT THE ABOVE ORDER MAY BE SET ASIDE.
THESE APPEALS COMING ON FOR HEARING THIS
DAY, KEMPANNA J, DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are preferred by A10, A11, A16, A18 and A2 to A9, A12 to A15, A17 and A19 respectively challenging the legality and correctness of the Judgment of conviction dated 11.9.2007 and order of sentence dated 12.9.2007 passed in S.C.NO.31/2002 by the Additional Sessions Judge and Presiding Officer of Fast Track Court-I, Hassan, convicting them for offences under sections-143, 147 r/w 149, 148 r/w 149, 341 r/w 149, 427 r/w 149, 302 r/w 149 and 307 r/w 114 IPC and sentencing them to undergo SI for 3 months for 7 each of the offences punishable u/S 143 r/w. 149, 148 r/w 149 IPC to undergo S.I. for one month for the offence punishable under section 341 r/w 149 IPC to undergo S.I. for 3 months for the offence punishable u/s 427 r/w 149 IPC to undergo imprisonment for life and to pay a fine of `2000/- each, in default to undergo SI for 6 months for the offence punishable under section 302 r/w 149 IPC., and to undergo RI for 5 years and to pay fine of `2000/- each, in default to undergo SI for 6 months for the offence punishable under section 307 r/w 114 IPC.
2. The brief facts of the case are:-
These appellants/accused along with accused No.1 who has not preferred the appeal were tried on the charges for the offence punishable under sections-143, 147, 148, 120(B), 341, 307, 302, 427 r/w 149 IPC and for the offence under section 379 IPC so far as A1 is concerned.8
3. It is alleged that these accused along with non- appealed accused No.1 on 1.10.2001 at about 9.45 p.m. had formed themselves into an unlawful assembly armed with deadly weapons like, chopper, clubs, stones, etc., near the waste ware of Uppalli Tank the common object of which was to commit the murder of the deceased Venkataramegowda and attempt to commit the murder of PW7 Mallika and in furtherance of the common object of their unlawful assembly at about 9.45 p.m. when the deceased Venakataramegowda accompanied by PW7 Mallika came in a Tata Sumo bearing registration No.TN-57/0723 driven by PW7 near waste ware of Uppalli tank way laid the said car by parking the lorry bearing registration No.KA 13/7277, thereafter, assaulted the deceased Venkataramegowda who was sitting on the left side of the Tata Sumo, with the weapons with which they were armed and committed his murder and also at about the same time they assaulted PW7 with lethal weapons and attempted to commit his murder and also damaged the Tata Sumo 9 car driven by PW7 and further A1 committed theft of cash of `50,000/- belonging to PW7 kept in the car thereby they committed the aforementioned offences.
4. It is the case of the prosecution, the deceased Venkataramegowda and the prosecution witnesses PWs.1, 2, 3, 4, 5, 6, 8, 9, 10, 12, 13, 14, 15, 16, 17, 19 to 33 are all residents of Uppalli village and belong to Dasegowdara Sect. All the accused are also residents of Uppalli village. Among them A1 to A18 belong to Mullugowdara Sect. Deceased Venkataramegowda and A1 Rangegowda were the leaders of their respective Sects.
5. It is the further case of the prosecution, the deceased Venkataramegowda was giving pinpricks to the accused and to their family members and was also filing false complaints against them. Likewise, it is the case of the prosecution accused had also attempted to poison the water of the bore well belonging to deceased Venkataramegowda. Apart from this, accused No.1 had 10 attempted to encroach the burial ground of the Uppalli village which was opposed to by the deceased Venkataramegowda and his followers. In this connection all was not well between the two groups and they were nursing grudge against each other.
6. It is also the prosecution case, deceased Venkataramegowda and his followers as aforesaid belong to Congress-I party and he was also the former President of Taluk Panchayat and his wife Yasodamma at the time of occurrence was a sitting member of Zilla Panchayat. The accused belong to Janata Dal (S) party. Just prior to the occurrence, Grama Panchayath election had been held. In the said election, accused-1 had contested against the son of deceased by name Yatheesh PW37 and in the said election A1 had been defeated. On account of this political rivalry also all was not well between them and as already stated their relationship had been deeply strained and were nursing grudge against each other.
11
7. Such being the case, it is the case of the prosecution on 1.10.2001 in the evening at about 4.00 p.m. the accused had conspired in the house of Shivanna A6 at Uppalli village to finish off the deceased. In pursuance of the said conspiracy that day i.e. 1.10.2001 at about 7.45 p.m. they formed themselves into an unlawful assembly armed with deadly weapons like, chopper, clubs, stones, etc. near the Waste ware of Uppalli tank and were waiting for the deceased who was expected to come by the same route to Uppalli village. It is the further case of the prosecution, thereafter at about 9.30 or 9.45 p.m. when the deceased came in the Tata Sumo of PW7 driven by him near the Waste war of Uppalli tank at about 9.45 p.m. the accused had parked a lorry obstructing the way of the Tata Sumo. As there was no space to pass through, PW7 stopped the car. At that point of time, it is the case of the prosecution, Accused 11 Gurupada, who was the driver of the lorry came in front of the Tata Sumo. At that point of time, the head lights of the Tata 12 Sumo, according to PW7 had been switched on. Seeing A11, deceased directed him to make way for them to proceed by taking the lorry to a side. At that point of time, deceased also noticed A3 coming near the car. Seeing him, deceased told PW7 that he is trouble raiser to him and he and his followers are behind him to finish him off on account of the differences that exists between them. At that point of time, it is alleged about 30 to 35 persons who had hidden including the accused armed with weapons came and surrounded the Tata Sumo car. Thereafter, A3 aimed blow on the neck of the deceased and seeing the same, when PW.7 raised his hand to ward off the same, blow landed on his right wrist, on account of which, it was cut. Thereafter, it is the case of the prosecution, A3 assaulted with chopper on the head and neck of the deceased. After A3 assaulted, it is the case of the prosecution, A10 assaulted the deceased on his head with a chopper. In the meantime the deceased was pulled out of the Tata Sumo by braking the window panes and the wind screens of the Tata 13 Sumo. Thereafter, A18 cut the throat of the deceased, A10 assaulted on the head of the deceased with chopper, A12 picked up size stone and threw on his head and the others assaulted the deceased with weapons with which they were armed and committed his murder. In the meantime PW7 went to some distance and called up the family members of deceased Venkataramegowda on his cell phone and informed that Venkataramegowda is being heckled and requested them to come to the spot immediately. It is also the case of the prosecution, in the mean time PWs.1, 3, 4, 5, 6, women folk of Uppalli village, among whom PW1 is the sister of the deceased, on hearing the commotion that was taking place near the Waste ware of Uppalli tank came running to the said place. Prior to that her son PW2 Manjunatha had informed her that he saw the accused standing near the Waste ware of the tank and apprehending some danger, she also sent him to the house of his brother to find out whether he is in the house or he is still to return to the house. 14 According to the prosecution all these witnesses namely, PWs.1, 3, 4, 5, 6 who came to the spot on hearing the commotion also saw the accused assaulting the deceased and PW7. Thereafter, it is the case of the prosecution, accused left the spot and A1 drove the lorry which had been parked obstructing the way for the deceased and PW7 in the car in which they were proceeding.
8. It is the further case of the prosecution, thereafter the Police arrived at the spot on receipt of the information and immediately they made arrangement to shift PW7 who was seriously injured to Hassan Govt. Hospital. After PW7 was taken to Hassan Govt. Hospital, he was treated by PW.50 and in the meantime PW51 PSI Gorur Police Station who had received information on wireless also arrived at the hospital. It is the case of the prosecution on arrival of PW51 PSI, he recorded Ex.P1 of PW7 on the intervening night of 1.10.2001 and 2.10.2001 in between 2.10 a.m. and 3.10 a.m. at the hospital and on the basis of Ex.P1 after 15 returning to the Police Station he registered the case against the accused and issued FIR as per Ex.P60 to the Jurisdictional Magistrate, which reached at about 6.45 a.m. on 2.10.2001. Thereafter PW60 CPI took over investigation from PW51. After taking over investigation PW60 CPI proceeded to the spot of occurrence accompanied by his staff. There he held inquest over the body of the deceased and also to record the statement of the witnesses. In pursuance of the same, PW60 held inquest over he body of the deceased and drew up inquest panchanama Ex.P21 in the presence of the panchas PW17 and others. At the time of inquest the blood relatives of the deceased identified MOs.19 to 22 which were on the person of deceased Venkataramegowda. At the time of inquest Ex.P21 he also recorded the statements of PW1, PW3 and other blood relatives. On the same day he also recorded the statements of PW2, PW4, PW5, PW6, PW13, PW18, PW37 and further statements of PW1 and PW3. After completing Ex.P21, he drew up the scene of occurrence 16 panchanama as per Ex.P3 in the presence of the panchas PWs.13 and others and at the time of Ex.P3 he seized MOs.1 to 18. On the same day, he also seized MOs.19 to 25 under Ex.P20 the clothes and the articles found on the body of the deceased in the presence of panchas PW15 and PW16 on being produced by the Police constable who had been deputed to take the body for PM examination. Thereafter, he forwarded the body of the deceased Venkataramegowda for subjecting to PM examination along with the requisition. In pursuance of the same, PW54 Dr. Sreedharmurthy conducted Autopsy over the body of the deceased on 2.10.2001 and issued PM report as per Ex.P78. Thereafter, he handed over further investigation of the case as per the orders of the Superintendent of Police to PW59 Additional SP of Hassan. PW59 on taking over the investigation proceeded to Uppalli village and there he recorded the statements of PW12 Shanthamma, PW16 Puttaswamygowda, PW8 Thimmegowda, PW14 Kumar and also including Smt. Yashodamma wife of the 17 deceased. He also collected further statement of PW7 which had been recorded by the CPI at Bangalore as per his direction. In the meantime, both PWs.59 and 60 had also deputed their staff to apprehend the accused. On 4.10.2001, PW29 recorded the statement of PW9 and also seized the lorry bearing registration No.KA 13/7277 under the panchanama Ex.P32 in the presence of the panchas PW19 and others which had been abandoned on the road at Balekopplu village. Thereafter on the same day, he also recorded the statement of PW11, owner of the lorry seized under Ex.P32. Continuing the investigation on 5.10.2001 he sent a requisition to issue the details of the calls made by PW7 and the deceased from their cell phone to Telecom office. On the same day, he also drew up panchanama as per Ex.P13 near the house of A6 Shivanna and also recorded the statement of the witnesses. Thereafter on 7.10.2001 PW59 arrested Accused Nos. 3, 4, 9 and 19 on being apprehended and produced by PW48. After their arrest on interrogation, 18 he recorded their voluntary statement as per Exs.P87, P88, P89. Thereafter, he secured the pancha PW.21 and recovered MO.30 and MO.28 at the instance of A3 in pursuance to his statement Ex.P87 under the Mahazar Ex.P35 and P34 respectively in the presence of the panchas PW21 and PW20 respectively. After completing the said recovery in pursuance of Ex.P88 of A4, he seized MOs.31 and 44 under the panchanama Exs.P36 and P47 in the presence of the punchas PW21 and PW25 respectively. Thereafter at the instance of A9 pursuant to his statement Ex.P89 he recovered MOs.26, 27 and MO32 under the panchanamas Exs.P33 and 36 in the presence of the panchas PWs.20 and 21 respectively. Thereafter, he recovered MO29 under the panchanama Ex.P34 in the presence of pancha PW20 on interrogation of A-19. Thereafter, PW59 on completion of the arrest formalities of A3, A4, A9 and A19 got them remanded to judicial custody.
9. PW59 continuing the investigation on 8.10.2001 arrested A2, A5, A7, A8 on being 19 apprehended and produced by PW53. On their interrogation, he recorded their voluntary statements as per Ex.P95, P96, P97 and P98 respectively. Thereafter, he recovered MOs.33 and 41 at the instance of A2 in pursuance of his statement Ex.P95 under the Mahazar Exs.P38 and P46 in the presence of the panchas PW22 and PW24 respectively. After completing the said recovery at the instance of A5, he recovered MO34 in pursuance of his voluntary statement Ex.P96 under the panchanama Ex.P39 in the presence of the very pancha PW53. After completing Ex.P96, at the instance of A7, he recovered MO40 in pursuance of his voluntary statement Ex.P97 under the panchanama Ex.P45 in the presence of the very pancha PW53. Thereafter, he recovered MOs.35 and 39 at the instance of A8 in pursuance of the voluntary statement of PW98 under the panchanama Ex.P40 and P44 in the presence of the panchas PW22 and 24 respectively. Thereafter, he got A2, A5, A7 and A8 remanded to judicial custody on completion of their arrest formalities. 20
10. PW59 continuing the investigation on 14.10.2001 arrested A11 on being produced by PW56 and recorded his voluntary statement a per Ex.P122. In pursuance of the same, he recovered MO51 under the panchanama Ex.P53 in the presence of the pancha PW27. PW29 arrested A12 also on 7.10.2001. At his instance, he recovered MOs.43 and 46 under the panchanama Ex.P47 in the presence of pancha PW25.
11. On 9.10.2001, PW59 arrested A13, A14, A15, A17 and A18 on being produced by PW60 interrogated them and recorded their voluntary statement as per Exs.P111, P112, P113, P114 and P115. In pursuance of the same, he seized MO47 under the panchanama Ex.P49, MO4 under the panchanama Ex.P48, MO.48 under the panchanama Ex.P50, MO49 under the panchanama Ex.P51, MO50 under the panchanama Ex.P52 at the instance of the respective accused in pursuance of their statement as aforesaid in the presence of the pancha PW26. Thereafter, he got the said accused remanded to judicial custody on 21 completion of their arrest formalities. Continuing the investigation, he also recorded the statements of some of the witnesses and also made attempts to trace the other absconding accused in the case. Subsequently on 22.10.2001 he handed over further investigation of the case to PW60 - CPI. On that day, Accused No.6 surrendered before the Jurisdictional Magistrate. PW60 obtained his PC remand by filing the application. He arrested him and on his interrogation, recorded his voluntary statement as per Ex.P129. In pursuance of the same, he seized MO36 under the panchanama Ex.P41 in the presence of the pancha PW23. Thereafter on completion of his arrest formalities got him remanded to judicial custody.
12. Likewise, A16 also had surrendered before the court. On the very day, he took him to PC and on his interrogation recorded his voluntary statement as per Ex.P130 and seized MO36 under the panchanama Ex.P41 in the presence of very pancha PW23. Thereafter on completion of his arrest formalities, he got 22 him remanded to the judicial custody. PW60 during the course of investigation also seized the blood stained cloths of PW7 on being produced before him under the Mahazar Ex.P2. Thereafter on 29.10.2001, A-10 surrendered before the Jurisdictional Magistrate. He got him remanded to PC and on his interrogation he recorded his voluntary statement as per Ex.P128 and in pursuance of the same, he seized MO37 under the panchanama Ex.P42 in the presence of the pancha PW23. Thereafter on completion of the arrest formalities, he got him remanded to judicial custody.
13. PW60 thereafter on 4.11.2001 arrested A1 and recorded his voluntary statement as per Ex.P136 on his interrogation and recovered MOs.55 to 62, 63, 54, 57, pass book Ex.P57 under the panchanama Ex.P58 in the presence of PWs.35 and 36. Thereafter, he also recovered MOs.38, 52 and 53 under the panchanama Ex.P54 in the presence of pancha PW28 and on completion of the arrest formalities, he got him remanded to judicial custody. Thereafter PW60 23 continuing the investigation recorded the statement of the official witnesses who had assisted in the investigation conducted both by himself and PW59, obtained the relevant certificates including PM report from the FSL office and the concerned Doctor. He also collected the rough sketch and the copies of the First Information Report under which case had been registered against the accused and also the deceased from the Jurisdictional Police Station and on completion of the investigation, he submitted charge sheet against the accused before the Jurisdictional Magistrate. The learned Magistrate, thereafter committed the case of the accused to the Court of Sessions which on receipt of the records secured the presence of the accused, framed charges against them as aforesaid, to which the accused pleaded not guilty and claim to be tried.
14. The prosecution in support of its case, in all examined PWs. 1 to 61 and got marked Exs.P1 to 144 and MOs.1 to 64. The accused during the course of 24 examination of the prosecution witnesses got marked Exs.D1 to D40.
After completion of the prosecution evidence, the accused were examined u/s 313 Cr.P.C. They denied all the incriminating circumstances that were put to them found in the evidence of the prosecution witnesses and also submitted that they have no defence evidence to lead. Total denial of the prosecution case is the defence of the accused.
15. The learned Trial Judge on considering the oral and documentary evidence placed on record came to the conclusion that the prosecution has established all the charges leveled against the accused including the charge for the offence under Section 379 of IPC levelled against A.1 and accordingly, by his Judgment dt.11.9.2007 convicted them of all the charges and by his order dt.12.9.2007 sentenced them as aforesaid.
16. The appellants accused except for A1 being aggrieved by the Judgment and order of conviction and sentence are in appeal before this court. 25
17. Sri.Jadav, learned Sr. Counsel and Sri.R.B.Despande, learned counsel appearing for appellants accused, assailing the impugned Judgment and order contended that the Trial Judge without appreciating the evidence of PW7 and other eye witnesses to the occurrence in its right perspective has come to an erroneous conclusion in holding that their evidence is trust worthy and reliable and consequently, the prosecution has established its case. They further contended, PW7, according to the prosecution is the injured eye witness, PWs.1, 3 to 6 are the eye witnesses to the occurrence. The evidence on record, more particularly that of PW7 and his First Information Ex.P1 filed before PW51 does not disclose the names of any of the eye witnesses as being present at the time of occurrence. They submitted his evidence and the First Information clearly discloses that PWs.1 and 3 to 6 came to the scene of occurrence after deceased had expired and accused had left the place. They also further contended when PWs.1 and 3 to 6 claim that 26 they all came from Uppalli village, none of the men of Uppalli village have accompanied them. It is unthinkable that only women folk like PWs.1, 3 to 6 would only come to the spot when admittedly the occurrence has taken place near the Waste ware of Uppalli tank and these witnesses have come to the said spot from the village on hearing the cries of the deceased and the commotion that was taking place. As their names are not found in the First Information, it is difficult to believe their testimony as having witnessed the actual occurrence as claimed by them. They also contended their evidence is also in direct conflict with the medical evidence on record. Further, though PW.7 claims that he is acquainted with deceased Venkataramegowda and the villagers of Uppalli, he has not mentioned the names of these witnesses having been present near the spot of occurrence, despite he having spelt out names of 30 persons in the First Information, which includes the names of the accused. They further contended Ex.P1 filed by PW7 has come 27 into existence after due deliberation and that is fortified from the fact that though he has taken out names of 30 persons in the First Information, 15 of them have been given up by the I.O. on the ground that there are no incriminating material as against the said persons. They further contended, Ex.P1 has come into existence at Hassan Govt. Hospital on the intervening night of 1.10.2001 and 2.10.2001 in between 2.10 am and 3.10 am. At that point of time, the Municipal President of Hassan Town Municipality and other leading politicians belonging to Congress-I party were present. The names of the accused as could be found from the Ex.P1 has been interpolated in between the lines. In view of the fact that 15 persons have been given up by the I.O., whose names find a place in the First Information on the ground that there are no incriminating circumstances and in view of the fact that the deceased and PW7 belongs to Congress party and at the instance of their leaders who were present in the hospital, the names of the accused who belong to Janata Dal (S) 28 Party has been specifically incorporated to falsely implicate them on account of the political rivalry which is fortified from the fact that there were complaints and counter complaints filed against both of them. Apart from this, they contended that PW7 in his First Information Ex.P1 does not take out the name of his assailant. He comes out with the version, according to the prosecution in his further statement recorded 8 days later. He claims that he sustained injury on his wrist when he raised his hand to ward off the blow aimed on the neck of the deceased by A3. Admittedly, according to him about 35 to 40 persons attacked deceased and himself near the Waste ware tank. If according to PW7 he and the deceased were assaulted by A3 and A16 as claimed by him, in view of the fact that the deceased has sustained multiple injuries which has resulted in his death, it is difficult to believe which blow dealt by each of the accused is fatal blow. Apart from this, they contended PW7 claims that his hand was severed on account of the assault made on him by 29 A3. He was first examined at Govt. Hospital, Hassan, by PW50. Thereafter he was shifted to St.Johns' Medical College Hospital at Bangalore. Wound Certificate Ex.P69 issued by PW50 of this witness PW7 does not disclose that his hand had been severed. On the other hand, it discloses that he had sustained only simple injuries. On the other hand, wound certificate i.e. Ex.P69 issued by PW50 does not disclose that his hand had been severed on account of the assault made by A3. They further contended, according to PW7, while deceased was assaulted at first he was in the car. Thereafter deceased was dragged out of the car and was assaulted by the accused who had gathered at the said place and he was sitting holding the steering wheel. Having regard to the location of the deceased where he was assaulted on the left side near the left rear wheel of the car, PW7 could not have witnessed the actual assault made by this accused as claimed by PW7. According to him, he was assaulted while he was sitting holding steering wheel. It is not his case that he was 30 dragged out of the car and thereafter he was assaulted. In view of the fact that he has implicated 15 of the accused who had no role in the actual assault either on himself or on the deceased and as he has not mentioned the names of the eye witnesses having been present on the spot of occurrence in Ex.P1 and as the medical evidence on record is in direct conflict with the evidence of PW7 and that of the eye witnesses, the testimony of PWs.1, 3 to 7 is untrustworthy and no reliance can be placed on them. They further contended though PW7 claims that he was acquainted with the villagers of Uppalli, he has stated in Ex.P1 the names and addresses of the assailants of the deceased and himself would be given by the witnesses PWs.1, 3 to 6. This would further fortify that the names of the accused has been interpolated in Ex.P1 after due deliberation at the hospital which has been recorded about 4 ½ to 5 hours after the occurrence. They also further contended in so far as the theft of `50,000/- is concerned, there is no mention of it in the First Information Ex.P1. The alleged 31 recovery of the money at the instance of A1 has no nexus with the amount of `50,000/- which according to PW7 had carried on the day of the occurrence. Though it is the case of the prosecution that the first accused relieved of `50,000/- from the possession of PW7, PW7 does not claim in his evidence that it was A1 who had taken away his money. The spot Mahazar Ex.P3 that has been drawn up on the spot discloses only 100 rupee notes were found at the spot. If according to PW7 he had carried the amount and he had kept in the car, the Police should have seized the same as PW7 does not claim either in Ex.P1 or in his evidence that A1 had taken the said money from out of his possession, it is difficult to believe the theory of prosecution that A.1 had taken away the amount of `50,000/-, which was carried by PW.7. They further contended that PW.7 claims that he had kept the money in his pocket, whereas the evidence on record is that he has kept in the dash board of the car, which is self-contradictory in his own 32 evidence, which does not inspire confidence to place reliance on the same.
18. They also further contended that the allege recovery of the weapons at the instance of respective accused made by both PWs.59 and 60 cannot be believed in view of the direct testimony of the witnesses being suspect and it being in conflict with the medical evidence. They also contended that PW.7 claims that an iron rod had been inserted into his mouth, on account of which, he had sustained injuries on his lips and one tooth had been half broken. This is also spelt out by the other eyewitnesses to the occurrence, who have been examined in the case. If according to PW.7 and eyewitnesses, an iron rod had been inserted into his mouth, on account of which, he sustained injuries on his lips and also inside the mouth, it is unthinkable that he would have been able to take out the names of 30 persons in Ex.P.1, as he himself has stated in his evidence that he was unable to talk on account of the injuries sustained by inserting iron rod into his mouth. 33
19. PW.50, who has examined PW.7 at the first instance at Government Hospital, Hassan, does not say he has noticed any injuries either on the lips or in the mouth and a teeth had been broken as claimed by PW.7. This would go to show that PW.7 has been made a tool to implicate the accused as assailants of the deceased and PW.7. They also contended that as the evidence on record reveals that all was not well between two groups on account of political rivalry and on account of complaints and counter complaints and further on account of the differences that were there between two sects, to which the accused party and the deceased party belong, the testimony of direct witnesses and that of PW.7 is untrustworthy and the learned trial Judge without appreciating these materials on record in its right perspective has come to an erroneous conclusion in holding that the prosecution has failed to establish the charges leveled against the accused. They also contended that the learned Sessions Judge has discussed the evidence only in paragraph No.74 and has 34 come to the conclusion that the prosecution has proved the guilt of the accused without appreciating the evidence of all the witnesses. The said finding of the trial Judge is perverse, it cannot be sustained and hence, it be set aside and the accused be acquitted of the charges leveled against them.
20. Countering the submissions made by the learned counsel for the appellants, Sri.Nawaz, learned Addl.S.P.P., supporting the impugned judgment and order contended that there is nothing on record to brush aside the evidence of PW.7, who is an injured eye- witness to the occurrence. His presence at the spot is amply proved by the fact of he having sustained injuries, which is corroborated from the evidence of PW.50, who has examined him on that very night in the hospital. He contended that an injured eyewitness would never exculpate his assailants. Admittedly, the evidence on record reveals that PW.7 was a close associate of the deceased Venkataramegowda. He knew his family members and he was also acquainted with 35 the people of Uppalli village. In the background, in which the occurrence has taken place, it is unthinkable for any individual like PW.7 to give a graphic picture of each of the events, when a group of persons have attacked the deceased and PW.7. Further, it is difficult to expect from the evidence of PW.7 as to the individual overt acts of each of the accused. What is required to be seen is; the truth has to be ascertained by sifting grain from the chaff. As PW.7 has taken out the names of his assailants and the assailants of the deceased in his evidence and as nothing has been brought out in his cross-examination to discredit his testimony, the trial Judge has committed no error in placing reliance on his evidence. He further contended that the presence of the eyewitnesses PWs.1, 3 to 6 is natural. They have come to the scene of the occurrence on hearing commotion, which was taking place near the tank waste ware, which is at a distance of 1 to 1.5 kms from the village. Merely because, the men folk of the village have not come to the spot, that does not go to show that 36 PWs.1, 3 to 6 have not come to the spot and have not witnessed the occurrence as claimed by them. He further contended that PW.7 has implicated these accused as assailants and the assailants of the deceased and in view of the fact that all the accused were nursing grudge against the deceased on account of political rivalry that was there between them, the evidence of these witnesses does not suffer from any infirmity and hence, the trial Judge has committed no error in relying on their testimony and holding that the prosecution has establish the charges. He further contended that the evidence of PW.7 is corroborated from the evidence of PW.50 in respect of the injuries, which he has sustained, merely because there are some exaggerations in the evidence of PW.7 and other witnesses, that does not take away the prosecution case in toto holding that they are interested and partisan witnesses. He further contended that the recoveries that have been made at the instance of the accused both by PWs.59 and 60 would further fortify the case of the 37 prosecution pointing towards the guilt of the accused in view of the testimony of PW.7, other direct witnesses, panchas and the police officers, who have supported the case of the prosecution.
21. He also further contended that insofar as the theft of `50,000/-, which had been carried by PW.7, the said money being in possession of PW.7, is fortified from the evidence of PW.31, which amount admittedly was found missing from the person of PW.7 and the car in which they were proceeding. The said amount has been subsequently recovered at the instance of A.1, which is fortified from the evidence of PW.34, Manager of Punjab National Bank. The trial Judge appreciating the same in its right perspective, has come to the right conclusion in holding that prosecution has established the charges leveled against the accused and therefore, it does not suffer from any infirmity calling for interference, accordingly, the appeal be dismissed.
38
22. In the light of the rival contentions, the evidence and documents on record, the points that arise for our consideration are:-
1) Whether the prosecution has established that the deceased Venaktararamegowda has died an homicidal death?
2) Whether PW.7 had sustained injuries on his person as projected by the prosecution?
3) If so, whether the prosecution has
established that the accused are
responsible for the homicidal death of the deceased and had attempted to commit the murder of PW.7?
4) Whether the prosecution has established that accused No.1 during the course of the commission of the offence had committed theft of `50,000/- which was in the possession of PW.7?
5) Whether the impugned judgment and order of conviction and sentence calls for any interference?39
23. Re-point No.1:
PW.54 is the Medical Officer, who has conducted autopsy over the body of the deceased Venkataramegowda. He has stated in his evidence that he has conducted autopsy over the body of the deceased on 2.01.20010. At the time of post mortem examination, he noticed the following external and internal injuries:-
I. Face is compressed onwards large lacerated wound with irregular borders of 10"x2" extending from the left side of the forehead 1" above the left eye brow extending down and running along parallel to the left side of nose, left angle of mouth, below the lower lip to end at the angle of the right side mouth.
1(a) Right eye is partially opened and the left eye is embedded in the wound No.1.
II Lacerated injury measuring 2" x ½" deep seen above and parallel to the right eyebrow, clotted blood seen. Aged about 10 hours.
III 3"x2" incised wound on the right parietal region of scapula with clotted blood - age about 10 hours.40
IV 3"x2" incised wound on occipital region of scapula with clotted blood. Aged about 10 hours.
NECK:
V 6" long 2" wide 2" deep cut throating seen over the front of the neck extending from the mid line to the right anterior border and skin and muscle exposing. The cut right carotid (ext) artery.
VI 4" long, 1" wide and 2 ½" deep incised wound below and parallel to injury NO.V, exposing the severed tracheae.
CHEST:
VII 6" long ½" wide, 1 ½" deep incised wound with clean cut borders seen on the right side of the chest, 3rd below and parallel to the right clavicle.
VIII Multiple linear brouser found on the vertebral aspect of the right upper arm 4" long, ½" wide dark in colour.
IX 3" x 1" linear incised injury on the lateral aspect right forearm, clear-cut, clotted blood, age about 10 hours.
X 6" x 1" incised injury on the dorsum of the right hand clotted blood and age about 10 hours.41
XI 2 ½" x 1" incised injury on the web space of right index and middle finger extending down towards the wrist joint.
RIGHT SHOULDER
XII 4" long 2" deep incised wound on
the right shoulder exposing the shoulder capsule, age about 10 hours.
XIII 2" x ½" incised injury on the
right scapula.
XIV Multiple contusion found at the
back of the body both sides each of which are 5" to 8" long 1 ½" wide dark in colour.
XV LEFT SHOULDER AND UPPER
LIMB:
3" x 2" incised injury on the left
should exposing muscle borders are clear cut with clotted blood - aged about 10 hours.
XVI 3" x 2" incised injury, 6" below the left elbow joint on the left lateral aspect exposing the muscles and clear cut, with clotted blood - age of about 10 hours.
XVI a) 3" x 1" and 1"x ¼" incised wound parallel to XVI injury.
XVII 1" x ¼" incised wound over the down dorsal aspect of ring, middle, index finger at the proximal phalynx of left hand.42
XIX 3"x2" incised injury over the palmer aspect of left hand between index and thumb web space.
XX LEFT LEG: 2" x ½" incised wound seen 2" below the left knee.
XX a) 8 parallel linear bruise found in the left thigh each 4" x ½" dark in colour.
XXI Linear multiple bruise over the ventral aspect of left upper arm, 5"x ½" dark in colour.
24. He has further stated that the external and internal injuries found on the body of the deceased are ante mortem in nature and he is of the opinion that the death is due to shock and hemorrhage as a result of multiple injuries. This evidence of PW.54 is not seriously challenged in the cross-examination. Further PW.60 has claimed that he held inquest over the body of the deceased and drew up inquest panchanama as per Ex.P.21 in the presence of panch PW.17. Their evidence reveals that they have noticed the injuries that were found on the body of the deceased as reflected in Ex.P.78. In their cross-examination also nothing has 43 been brought out to discard their testimony in respect of the injuries that they noticed on the body of the deceased. Apart from the same, the evidence of direct witnesses namely PWs.1, 3 to 6 and that of PW.7 also go to show that the deceased has died on account of the injuries sustained by him. In view of the testimony of these witnesses, more particularly that of the medical officer-PW.54 and his post mortem report - Ex.P.78 and in view of the fact that homicidal death has not been disputed, we have no hesitation to hold that the prosecution has established that the deceased Venkataramegowda has died an homicidal death.
25. Re-point No.2:
PW.7 in his evidence has claimed that on account of the assault made, his left wrist had been cut. He has been examined by PW.50 on the very night of the occurrence at Government Hospital, Hassan. The evidence of PW.50 - medical officer discloses that he has examined PW.7 and at that time he noticed three injuries on his person. The evidence of PW.50 in 44 respect of three injuries, which he has noticed on the person of PW.7 is not seriously challenged in the cross-
examination. PW.7 having sustained injuries as projected by the prosecution has not been seriously challenged. What is challenged to is; the accused are not responsible for the said injuries caused on the person of PW.7. We will deal with the same while dealing with the next two points in the later course of this judgment.
Suffice, at this juncture, having regard to the testimony of PW.7 and that of PW.50, we hold that the prosecution has established that PW.7 had sustained injuries on his person.
26. Re-Point Nos.3 and 4:
The next and most important aspect to be considered is; whether the prosecution has established that the accused are responsible for the homicidal death of the deceased Venkataramegowda, they have also attempted to commit the murder of PW.7 and accused 45 No.1 has committed theft of cash of `50,000/- which was in possession of PW.7. In this connection, the prosecution has placed reliance on the ocular testimony of PWs.1, 3 to 6 and PW.7-injured eyewitness, recoveries of the weapons made at the instance of the accused and the cash at the instance of accused No.1. It is the case of the prosecution that on the night of the occurrence when PW.7 accompanied by the deceased were coming in a Tata Sumo bearing Reg. No.TN-57-C-
723 to Uppalli Village and while they were near the waste ware of Uppalli tank which is at a distance of 1 to 1.2 kms from Uppalli, the accused way laid them by parking a lorry by forming themselves into an unlawful assembly armed with deadly weapons and in furtherance of the common object of their unlawful assembly, the accused assaulted the deceased with lethal weapons, which were in their hands and committed his murder by dropping a stone on his head.
Apart from the same, they also assaulted PW.7 and attempted to commit his murder with the weapons, 46 which were in their hands, caused damage to the tata sumo car, in which the deceased and PW.7 were proceeding and further A.1 took away the cash of `50,000/-, which was carried by PW.7.
27. Before dwelling upon the evidence of ocular testimony of PWs.1, 3 to 6, we deal with the evidence of PW.7 as he is the injured eyewitness to the occurrence. According to the prosecution, PW.7 was accompanying the deceased in his car on the very night of the occurrence. PW.7 claims that when he and the deceased came near the waste ware of Uppalli tank, they noticed a lorry having been parked obstructing their way. He parked his car and that time he noticed one person coming from the side of the lorry towards the car. The deceased seeing him told the said person, who is identified as A.11-Gurupada to take the lorry to the side and make them way to proceed. At that point of time, according to PW.7, one more person, who was wearing a blue banian came from behind the lorry towards the car and when he was sighted with light of the car, the 47 deceased told PW.7 that he is betta, who is accused No.3 in the case and told him that he is henchmen of his opposite group who are nursing grudge against him and his followers. He further claims that in the meantime, a group of about 35 to 40 people came from either the side of the car, which was parked at the said place. Thereafter, A.3 dealt a blow on the neck of the deceased by breaking open the side wind screen of the car. He raised his left hand to ward off the blow, but it landed on his left wrist which resulted in severance of the same. Thereafter, it is his case that the accused broke open the other side glasses of the door assaulted the accused with lethal weapons. Thereafter, according to him, the accused dragged out the deceased near the left side rear wheel of the car. There A.3 assaulted on the neck and chest of the deceased followed by A.16 and other accused and ultimately, one of the accused dropped stone on his head, due to which, the deceased died at the spot. It is his further claim, thereafter the accused came near his seat at the steering wheel and 48 the accused inserted an iron road into his mouth, due to which, he sustained injuries on his lips and inside the mouth and on account of inserting iron rod into his mouth, one of his tooth broke in the middle, due to which, he sustained severe injuries and was unable to speak. He also claims that after the deceased expired, PWs.1, 3 to 6 came to the spot. At that time, he had gone and hid himself behind a bush and from there he had called up his wife at the first instance from his cell phone and also family members of the deceased Venkataramegowda and informed that his life is in danger and to come to the spot immediately. His evidence also further reveals that by that time, PWs.1, 3 to 6 came to the spot and the accused had left that place. Thereafter, the police came to the said spot and he was removed to the hospital at Hassan. There he lodged complaint as per Ex.P.1 before PW.51 - PSI. That complaint Ex.P.1 has been recorded by PW.51 at Government Hospital, Hassan on the intervening night of 1.10.2001 and 2.10.2001 in between 2.10 a.m to 3.10 49 a.m. In the said complaint PW.7 has not taken out the names of either his assailants or the assailants of the deceased Venkataramegowda specifically except narrating that the accused assaulted both of them. He has further stated in Ex.P.1 that he was acquainted with the people of Uppalli village. But he has not even mentioned the names of PWs.1, 3 to 6 as the persons who came to the spot and had witnessed the occurrence either before or after. Further in the complaint Ex.P.1 he has taken out the names of 30 persons as accused in the commission of the murder of the deceased Venkataramegowda and the assault made on him. Out of 30 persons, as per the evidence of Investigation officers, since there was no incriminating material as against 15 of them they have been given up. The present accused name has been spelled out in Ex.P.1 as assailants along with the said 15 persons.
28. We have gone through the original Ex.P.1, which is on record. We find that the names of the accused have been interpolated in the space between 50 the lines in Ex.P.1. Apart from this, the evidence of PW.1 reveals that at the time Ex.P.1 was prepared in the hospital Town Municipal President of Hassan, belonging to Congress Party and other leaders of Congress Party were present. Admittedly, the complaint is recorded nearly about 4½ - 5 hours after the occurrence at the Government Hospital. By which time, the Congress party leaders were present near and PW.7 were present. That complaint does not mention the names of any of the eyewitnesses being present or any of the followers either of the deceased Venkataramegowda or people belonging to their Sects namely Dasegowdara Sect having been present at the time of occurrence. Apart from this, the evidence on record reveals that the police had come to the spot and removed PW.7 to the hospital. The evidence of other eyewitnesses also discloses that the police made enquiries with them when they had come to the spot before removing the deceased. That statement is suppressed by the prosecution. Admittedly, Ex.P.1 has 51 reached the Jurisdictional Magistrate on 2.10.2001 at about 6.45 a.m. This would go to show that much water has flown under the bridge before Ex.P.1 has come into existence. Firstly PW.7 has implicated the persons against whom there are no incriminating material as to the assault made either on himself or on the deceased. Nextly, the names of the eyewitnesses have not been spelled out in the first information, if really they had come to the spot as projected by the prosecution. Apart from this, absence of men folk of the village is another point, which would go to show that PWs.1, 3 to 6, who are women folk of the village only would have gone to the spot at that point of time on hearing the commotion that was taking place at waste ware of Uppalli tank.. We have come to this conclusion because the evidence of PW.1 discloses that she was informed by her son PW.2 of he having seen the accused at about 7.30 p.m. near the waste ware and apprehending some danger, she sent PW.2 to find out whether the deceased had come to the house or not, thereafter, she came 52 towards waste ware of Uppalli tank and on the way she informed other witnesses PWs.3 to 6, who accompanied her to waste ware tank. If according to PW.1 she informed the women folk, who accompanied her to the waste ware of the village tank, it is unthinkable that men folk of the village would not have followed to the said place where the occurrence has taken place as admittedly the deceased was their leader and they were his followers and that would go to show that the absence of their names in the first information lodged by PW.7, would fortify the defence of the accused that these witnesses had not come to the spot as claimed by them and projected by the prosecution.
29. Further, PW.7 claims in his evidence as already pointed out at the first instance A.3 dealt blow on the neck of the deceased while he was seated in the car after breaking open the window pane. He raised his left hand to ward-off the said blow, but it landed on his left wrist, which resulted in cutting-off the same. This is in direct conflict with the evidence of PW.50, who examined him in the hospital on the very night. The 53 evidence of PW.50 does not disclose that his left hand had been severed off as claimed in his evidence. Apart from this, he claims that the accused had inserted an iron road into his mouth while he was seated in the car at the steering wheel. On account of the same, he had sustained injuries on his lips, inside the mouth and one of his tooth had been broken in the middle. Due to this injury, he was unable to speak. First of all the Medical Officer, who has treated him at the hospital, has not noticed any injuries, which he has sustained on account of insertion of the iron rod into his mouth. This is another point which would go to show that the testimony of PW.7 and in the light of the fact that he has taken out the names of 30 accused as assailants of the deceased and himself would go a long way to place any reliance in his testimony. Further he claims that on account of the insertion of the iron rod into his mouth he has sustained injuries to his lips, inside the mouth and one tooth had been broken, due to which, he was unable to speak.. If that is taken into consideration, 54 whether he lodged complaint Ex.P.1 is the question, which would go to show that Ex.P.1 has come into existence after due deliberation and after implicating these accused against whom the deceased and his followers were nursing grudge on account of political rivalry, on account of complaint and counter complaints and on account of two groups belonging two different sects namely, the deceased belonging to Dasagowdara Sect and the accused party belong to Mullugowdara Sect community. Be that as it may, since Ex.P.1 is silent about the names of the eyewitnesses namely, PWS.1, 3 to 6 and further as it discloses the names and addresses of the accused would be furnished by women folk of Uppalli village, it would go a long way to place reliance on the testimony of PW.7 and to believe the recitals in Ex.P.1 as true version of the occurrence.
30. Though Mr.Nawaz, learned Addl.S.P.P. vehemently argued in a case of this nature, it is unthinkable to expect individual overt acts specifically, but what is to be seen is, grain has to be shifted from the 55 chaff in order to ascertain the truth or otherwise of the involvement of the accused in the occurrence. We really appreciate the said submission. But in this case for the reasons, which we have adverted to above, the evidence of PW.7 is untrustworthy. He claims that the name and address of the assailants of the deceased would be given by the women folk of Uppalli whereas PW.7 claims he is very well acquainted with the people of Uppalli village. When he has taken out the names of 30 persons being present at the spot in Ex.P.1, he has not whispered the names of any one of the persons belong to the party of the deceased or that of PWs.1, 3 to 6. Apart from this, as already pointed out, his evidence is also in direct conflict with the medical evidence on record. Further from the evidence on record, it is not possible to fix which of the accused has dealt fatal blow on the deceased and which of the accused has caused injury on PW.7. Therefore, the testimony of PW.7 on a close scrutiny, in our view, does not inspire confidence to place any reliance on the same. The trial Judge without 56 considering these aspects in the case has come to an erroneous conclusion that his testimony is trustworthy, which in our view, cannot be sustained.
31. Now coming to the ocular testimony of other witnesses namely, PWs.1, 3 to 6, admittedly, at the first instance, their names are not found in the first information. Apart from this, though they claim in their evidence that they actually saw the occurrence inasmuch as assault made on the deceased by the accused and also on PW.7, the same cannot be believed because PW.7 himself has narrated in Ex.P.1 that women folk of Uppalli came to the spot after the deceased was murdered and when they came he was hiding himself behind a bush and made calls to his wife and also to the family members of the deceased Venkataramegowda. If according to PW.7 - sole injured eyewitness, these witnesses came after the murder of the deceased, it is unthinkable to believe their testimony that they had seen the actual assault made on the deceased or PW.7. Further as already pointed out, these 57 witnesses also claim that one of the accused inserted iron rod into the mouth of PW.7, on account of which, he sustained injuries. That testimony of these witnesses is again in direct conflict with the evidence of the medical officer - PW.50, who has examined PW.7 on the very night of the occurrence, which is adverted to above. In the absence of any injury in the mouth of PW.7 as claimed by him and these witnesses and in the absence of their names in the first information, it is difficult to believe that these women folk had come to the spot on that very night and had seen the occurrence. According to these eyewitnesses, the police came to the spot on that very night, removed the injured to the hospital. They also made enquiries with them at that point of time. What they revealed to the police at the point of time, has been suppressed by the prosecution, as according to the investigation, their statement has been recorded subsequently. Admittedly, all was not well between two groups namely, the group of the accused lead by accused No.1 and group of the deceased and 58 prosecution witnesses lead by the deceased, on account of political rivalry, on account of different sects to which they belonged and on account of the complaint and counter complaints that were filed against each other.
32. As already pointed out the names of these persons have been interpolated in Ex.P.1, after due deliberation which has been recorded in the hospital after 4 ½ to 5 hours later that too in the presence of the political leaders of the deceased party. Since the evidence of these witnesses is in direct conflict with that of the medical evidence and as their names also does not find in the first information and as it is unthinkable that they being women folk would have only gone to the spot at that hour and not any of the men folk, who were in the village and as PW.7 has not taken out the names of any persons of Uppalli village belonging to deceased Venkataramegowda being present at the spot, though he claims he was acquainted with the villagers of Uppalli village would go a long way to place reliance on their testimony. The learned trial judge without 59 appreciating these materials, which are on record, in its right perspective has committed an error in coming to the conclusion that their testimony is trustworthy and in turn the prosecution has established the charges relying on their testimony.
33. Insofar as theft of `50,000/- from the possession of PW.7, which according to the prosecution, he had carried on that day, though they have examined PW.31 to show that she had seen PW.7 on that night being in possession of `50,000/-, Ex.P.1 is silent about PW.7 being in possession of that amount and theft of the said amount from him. PW.7 claims he had kept the money in his pant pocket. If according to the prosecution, that amount had been taken out from his pocket that too by A.1, PW.7 who claims he is acquainted with Uppalli villagers would not have failed to mention the name of A.1 as the person, who had taken out the cash, which was with him. On the other hand, in his evidence on record, he claims that he had kept the cash in the dash board, which we cannot 60 believe. We are of the view that there is no clinching evidence to show that A.1 had removed the cash of `50,000/- which had been carried by PW.7.
34. Insofar as the recoveries of the weapons at the instance of the accused though the panchas for the recovery have supported the case, in view of the conclusion that we have reached in respect of the direct testimonies of the witnesses, which includes the injured eyewitness PW.7, in our view the recoveries that have been made is also of no consequence to connect the accused either with the alleged murder of the deceased Venkataramegowda or causing injury to PW.7 as the evidence in respect of recovery also suffers inbuilt infirmity. The other ancillary evidence on record apart from what we have discussed to above, on a close scrutiny of the same also does not in any way further the case of the prosecution in pointing towards the guilt of the accused.
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35. The trial Judge at paragraph 74 of his judgment as held as follows:-
On going through the entire evidence of the prosecution witnesses accused have not disputed the place of occurrence, injuries to deceased Venkataramegowda and PW.7- Mallika and death of Venkataramegowda at the place of occurrence and FSL reports Exs.P.140 to 142, PM report Ex.P.78 and wound certificate of Mallika Ex.P.69. The evidence of prosecution witnesses proved that all the accused formed an unlawful assembly with a common object and armed with clubs, choppers, iron rods, sickle, knife and stone deadly weapons and on the day of incident accused No.11 Gurupada @ Gurupadegowda parked lorry bearing registration No.KA- 13/7277 across the road near Kerekodi of Uppalli and wrongfully restrained the Tata sumo in which deceased Venkataramegowda and Mallika are present. PW.1, 3 to 7 are eyewitnesses to the incident. PWs.1 and 3 to 6 narrated the incident lends complete corroboration to the testimony of PW.7, who is injured in the incident. There is no infirmity of any kind in the testimony of PW.7 Mallika, his 62 version of the incident and evidence of PWs.1 and 3 to 6 is consistent with medical evidence on record. Complaint Ex.P.1 is proved by the complainant PW.7. PWs.1 to 6 are villagers and illiterates and their evidence and evidence of other witnesses recorded on 6.11.2003 and onwards and there may be some variations and omissions in the evidence and there is no such material contradiction as per Ex.D.1 to 38 and it does not brush aside the prosecution case. There is trustworthy credible evidence on record and there is no delay in lodging the complaint Ex.P.1 which is recorded by the investigation officer in the presence of Doctor.
36. It is only this piece of material that the trial judge has relied upon to come to the conclusion that the prosecution has made out its case against the accused. Actually as already pointed out, there is no proper appreciation of the evidence, which we have adverted to above, made by the trial Judge in coming to his conclusion at paragraph 74. Therefore, we hold that 63 the said finding of the trial Judge is perverse and accordingly, it cannot be sustained.
37. At this juncture, as already pointed out, accused No.1 has not preferred any appeal challenging the judgment of conviction and sentence along with other accused. It is settled position of law, though the accused does not prefer any appeal and if other accused, who have faced trial along with him in the same case, which accused have also been convicted or sentenced on preferring their appeal, if they are successful, the benefit that has derived to the said appealed accused has also to be extended to the non- appealed accused namely accused No.1 in this case, who has not filed any appeal.
38. The Apex Court in the decision reported in Madhu Vs. State of Kerala in the case of 2012 (5) SCC 226 has held that non-appealed accused is also entitled to the benefit of acquittal, if the accused who has 64 preferred their appeal as against the order of conviction and sentence has succeeded in an appeal.
39. As we are setting aside the conviction and sentence passed on the appellants/accused by allowing their appeal, that benefit should also ennure to accused No.1, who has not preferred any appeal before this Court along with other accused. Further, we have also held that the prosecution has failed to establish that accused No.1 has committed theft of `50,000/-, which has been carried by PW.7. Therefore, the conviction and sentence recorded on this accused for the offences under Section 379 of IPC is also set aside.
40. In the result for the foregoing reasons, we proceed to pass the following:-
ORDER
(i) Appeals are allowed.
(ii) The impugned judgment of conviction and order of sentence dated 11.09.2007 in S.C.No.31/2002 on the file of the Presiding Officer and 65 Addl.S.J., Fast Tack Court - I, Hassan, passed on the appellants/accused and non-appealed accused No.1, is set aside.
(iii) All the appellants/accused in these cases including accused No.1, who has not preferred any appeal, are acquitted of all the charges levelled against them.
(iv) They are in custody. They are ordered to be set at liberty forthwith if not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE AK/SA