Karnataka High Court
Shivaramaiah S/O K T Shivappa vs The State Of Karnataka on 10 July, 2013
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF JULY, 2013
:BEFORE:
THE HON'BLE MR.JUSTICE B.V.PINTO
CRIMINAL APPEAL NO.1425/2006
BETWEEN:
1. SHIVARAMAIAH,
S/O K.T.SHIVAPPA,
AGED ABOUT 62 YEARS.
2. DEVARAJU,
S/O. SHIVARAMAIAH,
AGED ABOUT 34 YEARS.
3. KUMARA @ SHIVAKUMARA,
AGED ABOUT 28 YEARS.
4. VIJAYAKUMAR,
S/O.MAHADEVAIAH,
AGED ABOUT 28 YEARS.
5. SIDDARAMAIAH,
S/O. SHIVANNA,
AGED ABOUT 37 YEARS.
6. RAJANNA @ RAJASHEKARAIAH,
S/O. GIRIYAPPA,
AGED ABOUT 49 YEARS.
7. CHANDRANNA @ CHANDRSHEKARAIAH,
S/O. GIRIYAPPA,
AGED ABOUT 45 YEARS.
8. SHANKARAIAH @ SHANKARAMURTHY,
S/O.BASAVANNA,
AGED ABOUT 23 YEARS.
2
ALL ARE AGRICULTURISTS,
AND RESIDENTS OF KATTIGENAHALLI,
TIPTUR TALUK,
TUMKUR DISTRICT. ... APPELLANTS
(BY SRI A.H.BHAGAVAN, ADV. AND SRI.
H.V.BHANUPRAKASH, ADV. FOR APPELLANTS 1 TO 3
& APPELLANTS 5 TO 8)
(SRI H.S. CHANDRAMOULI, ADV. & SRI.K.A.
CHANDRASHEKAR, ADV. FOR APPELLANT 4)
AND:
THE STATE OF KARNATAKA,
BY THE POLICE OF,
TIPTUR RURAL POLICE STATION,
TUMKUR DISTRICT. ... RESPONDENT
(BY SRI.S. DORE RAJU- SPP)
THIS CRL.A FILED U/S.374(2) CR.P.C. AGAINST
THE JUDGMENT DT.22.7.06 PASSED BY THE II ADDL.
S.J., TUMKUR, IN S.C.NO.122/03 - CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCES
P/U/S.143, 147, 148, 448, 304-II R/W 149 OF IPC AND
SENTENCING THEM TO UNDERGO R.I. FOR 6
MONTHS AND 2 YEARS EACH FOR THE OFFENCES
P/U/S.143 AND 147 IPC RESPECTIVELY AND
FURTHER SENTENCING THEM TO UNDERGO R.I. FOR
3 YEARS AND 1 YEAR EACH FOR THE OFFENCES
P/U/S.148 AND 448 IPC RESPECTIVELY AND
FURTHER SENTENCING THEM TO UNDERGO R.I. FOR
3 YEARS AND TO PAY FINE OF RS.5000/- EACH AND
I.D., TO UNDERGO S.I. FOR SIX MONTHS FOR THE
OFFENCE P/U/S.304-II R/W 149 OF IPC. THE
SUBSTANTIVE SENTENCES SHALL RUN
CONCURRENTLY. THE APPELLANTS/ACCUSED PRAYS
THAT THE ABOVE ORDER MAY BE SET ASIDE.
3
THIS CRIMINAL APPEAL COMING ON FOR
FURTHER CONTINUATION OF ARGUMENTS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed challenging the Judgment dated 22.07.2006 passed by the II Additional Sessions Judge, Tumkur in SC No.122/2003 convicting the appellants for the offences under Section 143, 147, 148, 448, 304-Part-II r/w Section 149 of IPC and sentencing each of them to undergo rigorous imprisonment for six months for the offence under Section 143 r/w Section 149 of IPC and further sentencing them to undergo rigorous imprisonment for two years for the offence under Section 147 r/w Section 149 of IPC and further sentencing them to undergo rigorous imprisonment for three years for the offence under Section 148 r/w Section 149 of IPC and sentencing them to undergo rigorous imprisonment for one year for the offence under Section 448 r/w Section 149 of IPC and further sentencing them to undergo rigorous imprisonment for three years and to pay fine of `.5,000/- each, in default, to undergo simple imprisonment for six months for the 4 offence under Section 304-Part-II r/w Section 149 of IPC with a direction that all the substantive sentences shall run concurrently.
2. It is the case of the prosecution that, on 16.05.2003 at about 11.00 a.m all accused Nos.1 to 8 came near the house of the complainant situated at Kattigenahali Gollarahatti within the jurisdiction of Tiptur Rural police station and formed themselves into an unlawful assembly the common object of which was to abuse and assault the complainant and his family members and thereafter they gave threat and caused loss to CW.1, thereby, they are alleged to have committed an offence punishable under Section 143 r/w Section 149 of IPC.
3. It is the further case of the prosecution that, on the said date, time and place, all the accused being members of an unlawful assembly with the common object committed rioting and thereby, they are alleged to have committed an offence punishable under Section 147 r/w Section 149 of IPC.
5
4. It is also the further case of the prosecution that, on the aforesaid date, time and place all the accused persons being members of the unlawful assembly committed the offence of rioting by holding deadly weapons in their hands and thereby, they are alleged to have committed an offence under Section 148 r/w Section 149 of IPC.
5. It is also further alleged that, on the aforesaid date, time and place, accused trespassed into the dwelling house of CW.1 which is used for as a human dwelling and assaulted CW.1 and his family members and caused destruction of the door of the house and electric metre of CW.1 and caused loss to him, thereby they are alleged to have committed the offences under Section 448 and 427 r/w Section 149 of IPC.
6. It is also further charged that, on the said date, time and place being the members of the unlawful assembly by holding deadly weapons in their hands the accused voluntarily caused hurt to CW.1 and his 6 younger brother-Doddaiah by assaulting with fist and kicking them with legs and thereby, they are alleged to have committed an offence under Section 323 r/w Section 149 of IPC.
7. It is also the further charge against them that, on the said date, time and place accused have used filthy language against the complainant and her brother and gave provocation to cause breach of peace and thereby, they are alleged to have committed an offence under Section 504 r/w Section 149 of IPC.
8. It is also the further case of the prosecution that, on the said date, time and place accused have threatened the inmates of the house of the complainant and thereby, they are alleged to have committed an offence under Section 506 r/w Section 149 of IPC.
9. It is also the further case of the prosecution that, on the said date, time and place, accused have caused hurt to the chest of the brother of the complainant by name Doddaiah, as a result of which he succumbed to the injuries, thereby, they are alleged to 7 have committed an offence under Section 304 r/w Section 149 of IPC.
10. The prosecution in order to prove the case has examined in all 19 witnesses and got marked documents Exs.P1 to 33 and produced Mos.1 to 13. The defence of the accused was one of total denial. However, by the impugned Judgment the learned Sessions Judge was pleased to convict the appellants for the aforestated offences, while acquitting them of the offences under Section 323, 427, 504 and 506 of IPC
11. The case in this incident has been registered on 17.05.2003 in the Tiptur Rural Police Station in Crime No.64/2003 for the offences under Section 143, 147, 448, 427, 506, 323 r/w Section 149 of IPC on the basis of the complaint recorded from one Doddaiah S/o. Chikkaveeraiah. It is stated in the said complaint that, on 16.05.2003, when the son of the complainant by name Chandrashekhar went to his garden to bring pipe, accused No.3-Kumar abused Chandrashekhar in filthy language and assaulted him and threatened him away. 8 Chandrashekhar came and informed the complainant- Doddaiah in this respect. Thereafter, the complainant went near the garden land and questioned the accused No.3-Kumar as to why he has abused his son for which Kumar retorted stating that, he would come along with other people to his shed and there they would see, as to what to do. By deciding that no quarrel is required to be continued complainant came back to his house. At that time, uncle of accused No.3-Kumar by name Shivananjaiah (A.12) called him by coming near his house and at that time, all the accused persons whose name have been mentioned in the complaint came near the house of the complainant and abused the complainant and his family members. Being scared of the persons, the complainant went inside the house and closed the door. Accused broke open the door by means of an iron crowbar and thereafter they have assaulted him and his sister Kaleeramma and snatched her mangalya chain. Accused had also assaulted him and kicked him and committed atrocities on them and threatened to kill them. As his children were not found 9 in the vicinity, accused went in search of the children and as the children were not available, accused threatened the complainant to set fire to his shed and kill all his family members and also destroyed the electric meter board of their house.
12. PW.18-Siraji Ahamed, Sub-Inspector of Police was in charge of the police station on the date of the incident. In respect of the said complaint, he registered the case in Crime No.64/2003 and transmitted the FIR to the jurisdictional Magistrate. Thereafter, on the next day, when the injured-Doddaiah was coming towards the police station, it is stated that, he had collapsed on the way. Thereafter, PW.1 who is the sister of the deceased-Doddaiah accompanied the injured to the hospital. However, before reaching the hospital Doddaiah succumbed to the injuries at about 8.00 a.m. Thereafter, PW.1 went to the police station and gave a complaint which is marked as Ex.P1 alleging that the accused has committed murder of the deceased and that they had committed further criminal acts against the deceased and his family members. 10
13. PW.1-Kaleeramma is the sister of the deceased. She has stated regarding the incident which happened on 16.05.2003 at about 11.00 a.m in their house. She has stated that, all the accused had come to their house and assaulted the inmates of the house including herself and the deceased-Doddaiah. However, she has also stated that along with accused one Kumaraiah S/o. Giriyappa was also present along with them, when they came to the house on the date of the incident. She has specifically stated that, after coming to the house accused damaged the door and the electric meter with the help of a crowbar and trespassed into their house and assaulted her brother-Doddaiah with club and also kicked him. She has given omnibus statement before the Court stating that all the accused assaulted with club. However, she has specifically stated that Accused No.4 kicked her brother and assaulted with hands. She has further stated that, accused had caught hold of her mangalya chain and threw away. She has also stated that, accused No.3- Kumar assaulted her with his hand and kicked on her 11 back. Thereafter, both of them fell down. It is in the evidence of PW.1 that, accused thereafter went in search of the sons of the deceased-Doddaiah. However, they were not available in the village. It is suggested that, as the sons of the deceased and the accused belong to different community, a false case has been filed against the accused and that no incident as alleged has happened. It is also suggested that, the deceased had died due to pre-existing heart ailment and not as a result of assault on him. However, the said suggestions have been denied by PW.1
14. PW-2 -Savithramma is the neighbour and an eyewitness who has given evidence stating that, on the date of the incident, all the accused persons tress passed into the house of the deceased and assaulted the deceased and PW.1 by breaking open the door of the house.
15. PW-3 -Sannaiah is another eye witnesses and neighbour who has also stated regarding the incident that took place on the date of the incident in 12 the house of the deceased by trespassing inside the house by breaking open the door of the house.
16. PW-4 -Shivalingaiah has also stated that the deceased is his neighbour and that he was on the way to the hospital, when Doddaiah fell down complaining pain. Thereafter, he asked one Chikkanna to be present along with the deceased-Doddaiah and he came back to the house of Doddaiah and informed his family members about the ailment of Doddaiah. Thereafter, the family members took Doddaiah to Biligere Government hospital in a tractor and the doctor attending Doddaiah informed them that Doddaiah is already dead. Thereafter, the dead body of Doddaiah was brought back to the house.
17. PW-5 -Chikkanna has stated that the deceased is his distant relative and that he had accompanied PW.4 and others to the hospital along with Doddaiah, where the latter was declared as brought dead by the doctor. PW-6 -Shankarappa is the Junior Engineer in PWD Office. He has stated that he had 13 drawn the sketch of the scene of occurrence. PW-7 - Shivanna has stated that he came to know about the incident subsequently.
18. PW-8 -Lakshmidevamma is the daughter of the deceased who also came to know about the incident subsequently. PW-9-Chandrashekhar is an Agriculturist. He is the son of the deceased who spoke about the incident in the morning of 16.05.2003, wherein accused No.3 had abused him in connection with bringing of the water pipes through the garden lands of one Rajanna and one Kumaraiah. PW-10- Chikkaveeraiah is another son of the deceased- Doddaiah who was not present at the scene of occurrence when the incident happened. PW-11- Basavaraju is the signatory to Ex.P2-Spot mahazar and Ex.P4 under which the clothes Mos.8 to 11 were seized which belong to the deceased. PW-12 -Shivananjaiah has not supported the case of the prosecution. PW-13- Dr. M.D.Shivalingappa, the Medical Officer has stated that, he has conducted the postmortem examination on the dead body of the deceased. He has stated that, the 14 death of the deceased is due to pre-existing heart disease. He has also stated that, the deceased was suffering from heart ailment even prior to the date of the incident. PW-14 -Kundur Thimmaiah is the signatory to Ex.P9 which is inquest proceedings.
19. PW-15 -T.M. Nagaraju is the head constable of Crime Squad of Tiptur Rural PS who has apprehended accused No.3 and produced him before the Investigating Officer. PW.16- D.S.Veerabhadraiah is the photographer who has taken the photographs of the scene of occurrence. PW.17-Shivamma is the Secretary in Gram Panchayath Office, Hindiskere who has produced the documents regarding the property of PW.1. PW.18-Siraji Ahamed is the Sub-Inspector of Police who has registered the case and conducted the part of investigation. PW.19-S.Veerabhadrappa is the Circle Inspector of Police. He has stated that, after completion of investigation, he has filed the charge sheet. It is from the above evidence on record that the learned Sessions Judge has found the accused guilty of 15 the offences and convicted and sentenced them as aforestated.
20. Heard Sri.A.H.Bhagawan, learned Counsel appearing for the appellants and Sri.Dore Raju, learned SPP appearing for the State.
21. It is submitted by the learned Counsel for the appellants that, the incident has happened due to some misunderstanding between two villagers and that when the son of the deceased-Doddaiah took water pipe in the land belonging to the accused, some verbal altercation took place and it is the case of the prosecution that, as a result of which, all the accused persons had come to the house of the deceased and assaulted them. It is further submitted by him that, all the accused are related to each other and that they have come together to the house of the deceased. Hence, he submits that, there is no question of charging them for the offence of unlawful assembly, since all of them have entered into the house of the deceased and PW.1 one by one. It is further submitted that, when the deceased- 16 Doddaiah gave complaint to the police station, the names of PWs.2 and 3 is not mentioned in the FIR as being present at the scene of occurrence. However, in the evidence before the Court, they have been falsely implanted as witnesses. It is further submitted that, the death of the deceased is due to pre-existing cardiac problem which he was suffering even prior to the date of the incident. Hence, he submits that, the order of conviction against the accused is erroneous and that the appellants may be acquitted of the charges leveled against them.
22. Sri.Dore Raju, learned SPP on the other hand submits that, deceased himself has given complaint as per Ex.P28 explaining the incident that occurred on 16.05.2003. Deceased had named all eight persons in his complaint and has specifically stated that the accused have broken open the door of his dwelling house, and thereafter they have assaulted him. It is also further submitted by him that, the deceased had gone to the doctor on the night of the incident itself. But however, the doctor who had examined the deceased 17 could not be examined before the trial Court. He further submits that having regard to the narration of facts by the deceased in the complaint, it is clear that all the accused have formed themselves into an unlawful assembly by holding weapons and assaulted the deceased as well as PW.1. Hence, the prosecution has established the case against the accused beyond all reasonable doubt and that the learned Sessions Judge has rightly convicted them. Hence, he submits that, the said order of conviction may be confirmed and the appeal be dismissed.
23. I have carefully gone through the evidence and material on record. It is seen that the deceased himself had given complaint to the police station regarding the acts of the accused as on 16.05.2003 at about 11.00 am. It is seen that the said incident is a result of altercation between accused No.3-Kumar and PW.9-Chandrashekhar regarding PW.9 taking water pipe through the land of the accused and in respect of the said incident, there was some exchange of words. Subsequently all the accused had come to the house of 18 the deceased at about 11.00 a.m. It is alleged in the complaint that, accused had assaulted the deceased as well as PW.1. It is also stated that the deceased and PW.1 had been kicked on their stomach. The statement of the deceased is corroborated by the evidence of PW.1 whose name is also found in the complaint given by the deceased. In the cross-examination of PW.1, it is not clearly made out as to why the deceased had given a false complaint against the accused. Hence, on the consideration of the materials on record, I am of the opinion that the incident as alleged in Ex.P28 has really happened on the date of the incident. However, so far as the death of the deceased is concerned, the witness- PW.13 has stated that the death of the deceased is due to pre existing cardiac disease of the deceased. Hence death of the deceased has not been caused by actual assault by accused persons. In that view of the matter and also in view of the fact that the deceased had returned from the police station after giving complaint, the death of the deceased cannot be attributed to the act of the accused. Hence, I am of the considered 19 opinion, that the conviction of the appellant for the offence under Section 304-Part-II of IPC is erroneous and accused are entitled for an order of acquittal for the said offence.
24. So far as the other heads of conviction are concerned, since the fight is between the neighbours and that the accused came to the house of the deceased as a consequence of verbal altercation between PW.9 and accused No.3, it cannot be said the accused have formed an unlawful assembly with purpose to commit the criminal offence, since all of them had gone to the house of the deceased to question as to how PW.9 could take water pipe in their land without their permission. Hence, the conviction of the appellants for the offences under Section 143, 147, 148 is erroneous and accused are entitled for benefit of doubt so far as the said offences is concerned. This is more so because, the evidence of PWs.1 to 3 is discrepant insofar as the specific weapon is concerned and also individual acts of assault are concerned. Though it is not the part of evidence, but part of record, that the statement of one 20 Ramesh is available in the file which indicates that he is running a clinic called Balaji Clinic at Tiptur and that the deceased had come to him. The statement of Ramesh does not disclose that the deceased-Doddaiah had suffered any visible injuries on his body. The prosecution has chosen not to examine the said Ramesh. Therefore the learned Sessions Judge could not have convicted the appellants for the offences under Section 143, 147, 148 holding that they were holding deadly weapons in their hands and hence the accused are entitled for an order of acquittal of the said offences.
25. So far as the conviction for the offence under Section 448 of IPC is concerned, I am of the considered opinion that, PWs.2 and 3 being neighbours were not present inside the house where the incident has happened but it is stated by the neighbours that accused have criminally trespassed into the house of PW.1 by breaking the door and that they have caused damage to the house. The learned Sessions has acquitted the appellants for the offence under Section 427 of IPC. Hence, as the deceased-Doddaiah has stated 21 in his complaint that, all the accused came inside the house, I am of the considered opinion that, the order of conviction for the offence under Section 448 of IPC does not call for any interference, since the same is based on evidence on record.
26. So far as the sentence is concerned, it is seen that all the accused are villagers. Hence, sending accused to custody at this stage i.e, after lapse of about 10 years would not serve any purpose. On the other hand, they may be directed to pay compensation for the family of the deceased. Hence, the following order:
ORDER The appeal is allowed in part.
The order of conviction for the offences under Section 143, 147, 148, 304-Part-II of IPC as recorded against the appellants is hereby set aside and they are acquitted of the said charges leveled against them.
The order of conviction for the offence under Section 448 of IPC is hereby confirmed. However, the sentence of imprisonment for one year is set aside and 22 they are sentenced to undergo rigorous imprisonment for the period undergone by them as under trial prisoners and to pay fine of `5,000/- each, in default to undergo simple imprisonment for 3 months. The said sum of `.40,000/- if recovered shall be paid to the wife of the deceased, failing which the same shall be paid to PW.9-son of the deceased as contemplated under Section 357 of Cr.P.C.
SD/-
JUDGE KSR