Karnataka High Court
Ambaray S/O Basawantharaya ... vs The State Of Karnataka Through Rural ... on 29 August, 2017
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
CRIMINAL APPEAL NO.3539/2009
BETWEEN:
1. AMBARAY S/O BASAWANTHARAYA BENAKANALLI
AGE: 44 YEARS, OCC: AGRICULTURE
2. GURUNATH S/O BASAWANTHARAYA BENAKANALLI
AGE: 26 YEARS, OCC: AGRICULTURE
3. SHIVAKUMAR S/O BASAWANTHARAYA BENAKANALLI
AGE: 24 YEARS, OCC: AGRICULTURE
ALL ARE R/O. ASTAGA, TQ. AND DT. GULBARGA
... APPELLANTS
(BY SRI. R. S. LAGALI AND
SRI. R. J. BHUSARE, ADVOCATES)
AND:
THE STATE OF KARNATAKA
THROUGH RURAL POLICE STATION, GULBARGA
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
... RESPONDENT
(BY SRI. MAQBOOL AHMED, HCGP)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374 OF CR.P.C. PRAYING TO ALLOW THIS APPEAL AND
SET ASIDE THE JUDGEMENT AND SENTENCE DATED
31.01.2009 PASSED IN SPECIAL CASE NO.45/2004 ON
THE FILE OF II ADDITIONAL SESSION JUDGE AT
GULBARGA AND ACQUIT THE APPELLANTS FROM ALL
CHARGES.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment in Special Case No.45/2004 dated 31.01.2009 on the file of the II Additional Sessions Judge at Gulbarga wherein the appellants were convicted for the offences punishable under Sections 341, 324 and 504 read with Section 34 of IPC and they were sentenced imprisonment for the offence punishable under Section 341 of IPC to undergo simple imprisonment for a period of 15 days and to pay a fine of Rs.250/- each and in default to undergo simple imprisonment for 7 days. They are sentenced to undergo simple imprisonment for a 3 period of one year and to pay a fine of Rs.1,000/- each and in default to undergo simple imprisonment for two months for the offence punishable under Section 324 of IPC and further they are sentenced to undergo simple imprisonment for a period of three months and to pay fine of Rs.500/- each and in default to undergo simple imprisonment for 15 days for the offence punishable under Section 504 of IPC.
2. The complaint is lodged by one Kashappa on 16.06.2003, stating that the complainant and his family members were going to Raneshpeer Darga in a tractor for tonsure ceremony of his relative. While going on the road, accused persons from opposite direction with bullocks and on seeing the tractor, said bullocks went helter-skelter, because of which, the accused persons started abusing the 4 complainant and others as " Ye soole makkale namma ettugalu rasteya mele horatiddu nodi tractor nillisalu barudillavenu". By that time, Namdev and Sharanappa went to rescue them but the accused persons abused the complainant and hit him on the head with an axe, because of which, the complainant suffered bleeding injuries. In this background, a complaint came to be registered in Crime No.138/2003 for the above said offences. After the investigation, the final report came to be filed against the accused persons.
3. The learned Sessions has framed the charges for the offences punishable under Sections 341, 324, 504 read with Section 34 of IPC and under Section 3(1)(x) of SC & ST (P.A.) Act, 1989.
4. The prosecution has examined in all ten witnesses including the complainant as PWs.1 to 10 5 and marked nine documents as Exs.P1 to P9 including the complaint. The weapon, which was used for the alleged offence has been marked as MO.1.
5. The learned Sessions Judge/Special Judge at Gulbarga has disposed of the matter on 31.01.2009 finding the accused guilty for the above said offences.
6. The learned Sessions Judge finds that the investigating officer has not conducted the test identification parade and his evidence that he had secured 10 persons who are having similar appearance as that of the accused persons in the police station. They were shown to the complainant and thereafter the accused persons have been identified by the complainant. Thus, conducting of identification parade is not disputed. 6
7. The learned Sessions Judge also finds from the version of the complainant that there was previous acquaintance with the accused persons. However, it is admitted fact that the complainant and other witnesses are the residents of Keri Ambalaga village and the accused persons are from Astagi village.
8. The entire motive for the incident is accused persons picking up quarrel with the tractor driver and the complainant. At that time the complainant sustained injuries on his head with MO.1 - Axe. PW.8 - Nagendrappa is the driver of the tractor and he turned hostile to the prosecution case. PW.3 - Machendra also turned hostile to the prosecution case and this witness is cited for conducting of Mahazar as per Ex.P2. 7
9. Insofar as the evidence of PW.1 is concerned, he stated that two accused persons held his hand and one accused hit him on the head with an axe. He also states that the village people came and rescued them. He does not know the time when he lodged the complaint to the police. He also states that his clothes were bloodstained because of the injuries sustained by him but they were not handed over to the police. In this connection he does not explain why they were not handed over to Police nor any explanation forthcoming from the I.O.
10. PW.2 Hanumanth is cited as mahazar witness for the spot is of no avail, goes against the prosecution.
11. PW.3 Machendra is a mahazar witness turned hostile and he also follows PW2. 8
12. PW.4 Sharanappa is injured witness apart from complainant- PW1. He also states that on the date of incident at 9-00 AM at Astagi when they came near the village the bullocks ran helter- skelter because of the noise of the horn and in this connection quarrel started between the accused and the complainant. The 3rd accused hit the complainant with MO1 axe and villagers came and rescued. He denied the suggestion made by the learned counsel for the accused. Thus, this witness says that PW1 was hit by axe, the version between PW1 and PW3 is not congruent insofar as the sequences of incident as narrated by the complainant is not with par with this witness. The substances states that complainant was hit by axe and accused Nos.1 and 2 were holding the complainant. The complainant has gone on record by stating that the villagers saved them. Thus, he 9 has gone on record by admitting that village people were present and they saved them.
13. Khyamalinga is from Kere Ambalaga, he was examined as PW6. He is said to have been gone in the tractor for the function and he turns hostile. However in his chief- examination he states that he was in the backside, but did not see quarrel and further denies the suggestion passed on by the learned P.P. To that extent he damages the version of the complainant.
14. Nagendrappa is PW8 and cited as CW8. He is the person who has said to have been taken the complainant and others in tractor for function. That means he is supposed to have first stand information of what happened regarding incident. He turns hostile. According to him on the date of incident near Astagi, the accused or their bullocks 10 did not come on their way. He adds his portion of evidence to further damage the evidence of the complainant.
15. Dr. M.G.Beedimani is the PW9, who has examined the injured persons and issued the wound certificates Ex.P6 and Ex.P7. The injuries examined by him are as under:
Lacerated injury of size 1" x 1" on the Right side of tempero-porietal region of head 1"
lateral to midline. Irregular edges with blood stained. Patient is conscious. Patient is admitted in the emergency ward under surgery "A" unit for X-ray skull & treatment.
As per X-ray No.1076 dated 18.06.2003 of Skull-AP & lat. Shows NAB.
16. The next oral evidence is of PW10 K.Rajagopal, the I.O. who speaks regarding formalities of investigation.
11
17. The offences charged against the accused persons are under sections 341, 324, 504 R/w Section 34 of IPC and also under section 3(1)(x) of SC & ST (PA) Act 1989.
18. The learned counsel for the appellant would submit that the ingredients of the offences charged against the accused persons are not forthcoming in a reliable manner from the evidence of the prosecution witnesses, more particularly the evidence of PW3 and PW4, either corroborated or substantiated the version of injured and complainant PW1. In so far as the sequence of events in attacking and committing offences are the evidence of PW1 is to the effect that two persons held him, third one hit him with axe. But this version is not supported by PW4. He confines his version to, there was a quarrel and complainant was 12 hit by the accused and further accused No.3 hit him with axe on the head and other accused persons hit him with hands and villagers came and rescued. In so far as evidence of PW.5 is concerned, he got down from the tractor to save the complainant. He states that accused No.3 Kashappa hit PW.1 with axe M.O.1. In so far as evidence of PWs.6 and 7 is concerned, they were said to be the witnesses for the incident. It is also to be seen that the prime version of the complaint and the complainant is that accused Nos.1 and 2 held the complainant and accused No.3 hit him on the head by axe M.O.1. Thus, all the persons are injured. However, the medical examination was conducted for PW.1- complainant and PW.4 Sharanappa. Though it is said that injured witness is the best witness and he was also hit by hand by the accused persons. 13
19. The learned trial Judge has acquitted the accused persons for the offence punishable under Section 3(1)(x) of the SC & ST (PA) Act, 1989. However, they are convicted for the offences punishable under Sections 341, 324, 504 R/W Section 34 of IPC.
20. Insofar as the offence punishable under Section 504 is concerned, it is provoking a person to commit breach of peace. It is not forthcoming in the evidence of prosecution witnesses. It is the version of the prosecution that the complainant and his men were held and restrained from moving in a direction where they injured persons were entitled to proceed. The offence according to complainant is that the complainant and his men were held and hit. In the sense, accused Nos.1 and 2 held the complainant and accused No.3 hit with M.O.1. 14
21. Ingredients of the offence under Section 341 of IPC is concerned, the primary ingredients of the offence are; more particularly, for the reason that the accused and the complainant were of different villages and one was not having acquaintance with the other and the narration by the complainant in this connection regarding acquaintance does not inspire confidence to hold it to be a genuine one. Regard being had to the fact that the accused persons have been acquitted for the offence punishable under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
22. The evidence of PW.1 and the oral and documentary evidence establish that incident happened on that particular day wherein the complainant and his men and the accused persons 15 were present at the spot and there appears to be altercation and quarrel between complainant and accused persons. But insofar as causing injury to PW.4, the evidence does not support to that extent to hold the accused guilty.
23. However, Sharanappa is the complainant and his main grievance in the complaint is that he sustained bleeding injuries and it was not a family rivalry or the vengeance because of land, relationship or political. The circumstances suggest it happened on spur of moment without expectation by the complainant or the accused. The complainant states that his clothes stained bloodstains and contends that they were not seized by the Police. Evidence of I.O. is silent regarding seizure of cloth and on context, substantially it 16 suggest that there was no seizure of bloodstained clothes.
24. The further artificial situation pleaded by the prosecution is regarding identification parade. The accused nor it is a pre-requisite before filing charge sheet, the I.O. deposes that the same was held. Though the same is not a bar for the trial of present kind of trial, it is not mandatory as well. To that extent the prosecution witnesses including PW.1 does not speak about the same.
25. Thus, the sequence of events regarding attacking of persons, non acquaintance of accused and the complainant till the date of incident, difference in the version of PWs.1 and 4, non recovery of bloodstained clothes being seized so leave impact against prosecution. According to the Doctor, there was no bleeding injury, two incised 17 wounds, but no fracture. He does not speak on bloodstained clothes or the shirt worn by him being bloodstained and the concept of identification parade as observed in the judgment by the learned Judge basing on the evidence of I.O.
26. Thus, in the circumstances it is necessary to mention Sections 323 and 324 of IPC.
"Section 323. Punishment for voluntarily causing hurt.- Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 324. Voluntarily causing hurt by dangerous weapons or means.- Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or 18 cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
27. In the facts and circumstances, no doubt the accused are found guilty of the offence punishable under Section 324 of IPC wherein the weapon is used for offence and regarding bleeding, bloodstained clothes and the evidence, it suggest that the incident does not appear to come under the provisions of offences punishable under Sections 504 and 341 R/W Section 34 of IPC. However, on 19 contextual reading and the injury sustained and the presence of the accused and the complainant and doctors examination, the prosecution has proved that the accused Nos.1 to 3 in furtherance of their common intention, held the complainant and accused No.3 hit the complainant and caused injuries. Thus, the accused persons are liable for punishment under section 324 of IPC, which is punishable with imprisonment for three years or with fine or with both.
28. The learned counsel for the appellants submit that the appellants-accused were in judicial custody for two days. Thus, in the circumstances, the offence is punishable with imprisonment for three years or with fine or with both. As such, considering the stay of the appellants-accused for two days in judicial custody, it would be just and 20 proper to treat their stay in judicial custody for two days as the quantum of simple imprisonment and to direct them to pay a fine of Rs.1,000/- each. The learned counsel for the appellants and learned HCGP submit that the appellants have already deposited fine amount of Rs.1,000/- each.
29. Insofar as the other charges in respect of offences punishable under sections 504 and 341 R/W Section 34 of IPC, the appellants are entitled for acquittal.
30. Hence the following:
ORDER Appeal is allowed in part. The judgment and sentence passed by the learned II Addl. Sessions Judge, Gulbarga in Spl. Case No.45/2004 on
31.01.2009 is modified as under:
21
The appellants are acquitted for the offences punishable under Sections 504 and 341 of IPC.
The appellants are convicted for the offence punishable under Section 324 R/W Section 34 of IPC. The stay of the appellants-accused in judicial custody for two days is treated as quantum of sentence of simple imprisonment and they are directed to pay a fine of Rs.1,000/- each for the offence punishable under Section 324 R/W Section 34 of IPC.
Sd/-
JUDGE Srt NSP SMP