Karnataka High Court
Somappa S/O Sangappa Madar Ors vs The State Through Muddebihal P.S. on 6 June, 2018
1 CRL.A. No.3669/2011
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF JUNE, 2018
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL NO.3669/2011
BETWEEN:
1. SOMAPPA S/O SANGAPPA MADAR
NOW AGE: 44 YEARS OCC: AGRICULTURE
2. DEVAPPA S/O SANGAPPA MADAR
AGE: 37 YEARS OCC: AGRICULTURE
3. YALLAPPA S/O SANGAPPA MADAR
AGE: 40 YEARS OCC: AGRICULTURE
4. KRISHNAPPA S/O SANGAPPA MADAR
AGE: 42 YEARS OCC: AGRICULTURE
5. HULLAPPA S/O SANGAPPA MADAR
AGE: 32 YEARS OCC: AGRICULTURE
6. SIDDAPPA S/O SANGAPPA MADAR
AGE: 42 YEARS OCC: AGRICULTURE
7. YAMANAPPA S/O SHIVAPPA MADAR
AGE: 27 YEARS OCC: AGRICULTURE
8. KASHAPPA S/O SHIVAPPA MADAR
AGE: 22 YEARS OCC: AGRICULTURE
9. SIRAMAPPA S/O DHANNAPPA MADAR
AGE: 37 YEARS OCC: AGRICULTURE
2 CRL.A. No.3669/2011
10. KADAPPA S/O CHANDAPPA MADAR
AGE: 29 YEARS OCC: AGRICULTURE
11. SHIVAPUTRAPPA @ SHIVAPURAPPA
S/o.CHANDAPPA MADAR
AGE: 47 YEARS OCC: AGRICULTURE
12. SANGAPPA S/O SOMAPPA MADAR
AGE: 22 YEARS OCC: AGRICULTURE
13. MANJAPPA S/O KALAPPA SALODAGI @ MADAR
AGE: 20 YEARS OCC: AGRICULTURE
14. PAVADAPPA S/O KALAPPA SALODAGI @ MADAR
AGE: 24 YEARS OCC: AGRICULTURE
15. VITHAL S/O YALLAPPA BIDARKUNDI @ MADAR
AGE: 21 YEARS OCC: AGRICLTURE
16. DURGAPPA S/O CHANNAPPA MADAR
AGE: 47 YEARS OCC: AGRICULTURE
17. BASAPPA S/O SOMAPPA MADAR
AGE: 24 YEARS OCC: AGRICULTURE
18. RAJU S/O BASAPPA MADAR
AGE: 56 YEARS OCC: AGRICULTURE
19. BASAPPA MOTHER KARABASSAVVA MADAR
AGE: 56 YEARS OCC: AGRICULTURE
20. SABANNA S/O BASAPPA MADAR
AGE: 27 YEARS OCC: AGRICULTURE
ALL R/O: BASARKOD VILLAGE
TQ: MUDDEBIHAL DIST: BIJAPUR.
... APPELLANTS
(By SRI.ANIL KUMAR NAVADAGI, Advocate)
3 CRL.A. No.3669/2011
AND:
THE STATE
THROUGH MUDDEBIHAL P.S.
TQ: MUDDEBIHAL
DIST: BIJAPUR.
... RESPONDENT
(BY SRI.MAQBOOL AHMED, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374 (2) OF CR.P.C. PRAYING TO ALLOW THE
APPEAL AND SET ASIDE THE JUDGMENT OF
CONVICTION DATED 13.09.2011 AND ORDER OF
SENTENCE DATED 19.09.2011 OF FAST TRACK
COURT-I/II BIJAPUR IN S.C.NO.175/2009 AND
ACQUIT THE APPELLANTS HEREIN FOR THE
CHARGES FOR WHICH THEY ARE CONVICTED.
THIS APPEAL IS COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal arises out of judgment and order of conviction and sentence dated 13.09.2011 / 19.09.2011 passed by Fast Track Court-I/II Bijapur in S.C. No.175/2009. By the impugned judgment and order, the trial Court has convicted the appellants for the offences punishable under Sections 143, 147, 148, 448, 324, 326, 307, 435, 427, 336, 504 and 506 read with 4 CRL.A. No.3669/2011 Section 149 IPC. The trial Court sentenced them to rigorous imprisonment of three years and fine of Rs.500/- for the offence punishable under Section 307 IPC.
2. The appellants were tried in the said case on the basis of charge-sheet filed by Muddebihal Police in Crime No.149/2018 of their police station on the basis of Ex.P-1, the complaint of PW.1. Initially, complaint was filed against 24 persons. In the complaint, it was alleged that during intervening night of 06/07.07.2008 at 05.00 a.m., the accused due to previous ill-will, formed unlawful assembly armed with deadly weapons like axes, clubs and stones, trespassed into the house of complainant and assaulted PWs-3 & 4 i.e., his daughter and son. In the adjacent house, PWs.5 and 6 were residing. Accused assaulted PWs.5 to 7 and caused grievous injuries and criminally intimidated them and committed fire mischief in the complainant's house. 5 CRL.A. No.3669/2011 Thus, accused attempted to commit the murder of complainant party.
3. The Investigating Officer after conducting investigation dropped accused Nos.7, 11, 12 and 13 named in the FIR and charge-sheeted only present appellants for the offences punishable under Sections 143, 147, 148, 448, 324, 326, 307, 435, 427, 336, 504 and 506(2) read with Section 149 IPC.
4. The Magistrate after taking cognizance committed the matter to the Sessions Court. The Sessions Court on hearing parties framed charges against the appellants for the aforesaid offences. The accused denied the charges and claimed trial. Therefore, trial was conducted. In support of its case, the prosecution examined PWs.1 to 23 and got marked Exs.P.1 to 18 and Mos.1 to 15. The accused were examined under Section 313 Cr.P.C. with regard to incriminating evidence. They did not lead any defence 6 CRL.A. No.3669/2011 evidence. However, on their behalf, by way of contradiction Exs.D.1 to 5 were marked.
5. The trial Court after hearing both side, by impugned judgment and order, convicted the appellants and sentenced them as stated supra, holding that charges are proved by evidence of injured witnesses, eyewitnesses, medical evidence and circumstance recovery of weapons.
6. Sri.Anil Kumar Navadagi, learned counsel for the appellants seeks to assail the impugned judgment and order of conviction and sentence on the following grounds:
(i) Due to previous ill-will between the parties, accused are falsely implicated;
(ii) Witnesses have not spoken about specific overt-acts of each of the appellants;
(iii) The evidence of witnesses shows that the incident has occurred during wee 7 CRL.A. No.3669/2011 hours and it was dark. Therefore, identity of the appellants is not fixed;
(iv) None of the witnesses to the recovery mahazars Exs.P.14 to 16 are examined, but trial Court held that recovery is proved;
(v) The spot Mahazar witness turned hostile. Therefore, recovery of stones MO Nos.12 to 14 is doubtful;
(vi) The alleged eyewitnesses are relatives of the complainant and injured. Therefore, they are interested witnesses. The trial Court should not have accepted their evidence.
7. Sri.Maqbool Ahmed, learned High Court Government Pleader seeks to support the impugned judgment and order of conviction and sentence of the trial Court on the following grounds:-
(i) The suggestion of the accused shows that the enmity between the complainant parties and accused parties itself proved motive circumstance;8 CRL.A. No.3669/2011
(ii) PWs.3 to 7 being injured witnesses, there is no reason for them to falsely implicate the appellants sparing true culprits;
(iii) PWs.1, 8 to 11 and 13 to 16 eyewitnesses and PWs.3 to 7 injured witnesses all belong to same family.
Their houses situated adjacent to each other. Said fact is not denied. Therefore, the presence of PWs.1, 8 to 11 and 13 to 16 at the time of incident is quite natural. Therefore, their evidence cannot be rejected as interested witnesses only on the ground that they are relatives of PWs.1 and 3 to 7;
(iv) The evidence of PWs.1 and 3 to 7 is corroborated by medical evidence and evidence of police witnesses;
(v) The accused have not disputed the injuries of the victim. They only suggest that they are accidental injuries which has no basis;
(vi) When there are injured witnesses, absence of proof of recovery of weapons becomes inconsequential;
9 CRL.A. No.3669/2011
8. In support of his contentions, he relies upon the judgement of Hon'ble Supreme Court in Chandrasekar and another vs. State, (2017) 13 S.C.C. 585.
9. Having regard to the rival contentions, the points that arise for consideration of this Court in this appeal are:
(1) "Whether prosecution has proved the charges brought against the accused / appellants beyond reasonable doubt ?
(2) Whether impugned judgment and
order of conviction and sentence
passed by the trial Court warrants interference of this Court ? "
10. The case of the prosecution depends upon:
(1) Circumstances of motive; (2) Evidence of complainant/PW.1; (3) Evidence of injured/PWs.3 to 7; (4) Evidence of eyewitnesses PWs.8 to
11 and 13 to 16;
10 CRL.A. No.3669/2011(5) Medical evidence of PWs.12 and 21;
(6) Circumstances of recovery of weapons MOs-1 to 11 under Mahazar Exs.P.14 to 16;
(7) Evidence of Police witnesses; and (8) Spot Mahazar.
REG. MOTIVE:
11. As per evidence of complainant, injured and eyewitnesses, about two months prior to the incident, when the accused party were taking marriage procession in front of the house of PW.1, a quarrel ensued between the accused party and complainant party regarding cracking of fire works. In that background, about two months back the accused party-
Somappa, Devappa, Yallappa, Krishnappa, Hullappa- Accused Nos.1 to 5 and the dropped accused No.12- Sangappa, had assaulted PW.1 with clubs. PW.1 stated that, he proposed to give complaint against accused parties, but elders of the village advised not to give 11 CRL.A. No.3669/2011 complaint. Due to such ill-will, present offence is committed.
12. In the cross-examination of the witnesses, accused do not deny that there was previous galata between them and complainant parties. As against that, they themselves suggested to the witnesses that after previous galata between PW.1 and accused, the accused left the village and started residing in the farm-house outside the village. Therefore, the circumstances of the motive are proved by suggestion made by the accused in the cross-examination of the witnesses themselves. REG. RECOVERY OF M.O. Nos.1 to 11:
13. The weapons allegedly used in the commission of offence are M.O. Nos.No.1 to 6, axes, MO Nos.7 to 11 sticks, Mos.No.12-14 stones. MO Nos.1 to 11 are allegedly recovered at the instance of accused No.12 under Ex.P.14, at the instance of Accused No.3 under Ex.P.15 and at the instance of Accused No.7 12 CRL.A. No.3669/2011 under Mahazar Ex.P.16 from land of Accused No.1 on the basis of alleged voluntary statements of the said accused as per Ex.P.11 to 13.
14. The accused denied the voluntary statement or any recovery under Exs.P.14 to 16. As per prosecution, CWs-2 and 4 are Mahazar witnesses to Exs.P.14 to 16. For the reasons best known to the prosecution, those witnesses are not examined to prove the said recoveries. Therefore, appellants are justified in contending that recovery of MO Nos.1 to 11 is not proved beyond reasonable doubt and finding of trial in that regard is erroneous. Whether failure to prove recovery of MO Nos.1 to 11 itself exonerate the appellants will be discussed at the later point. REG. SCENE OF OFFENCE & CHARGE UNDER SECTION 427 IPC:
15. To prove the scene of offence, prosecution relies upon the evidence of complainant, injured 13 CRL.A. No.3669/2011 witnesses, eyewitnesses, Mahazar Ex.P.2, Mahazar witness-PW-2 and PSI/Investigation Officer. It is, no doubt, true that the complainant, injured and eyewitnesses stated that houses of PWs.1 and 6 are at the scene of offence. They also speak about accused setting the firewood stocked outside the house. According to PW.1, he showed the scene of offence to Investigation Officer PW.22 and Ex.P.2 was drawn in the presence of PW.2.
16. PW.2 does not support the proceedings under Ex.P-2 Mahazar. He states that about two years back when he was returning from his college, the police had gathered in the village and took his signature on panchanama. But, he says that panchanama was not conducted in his presence and he does not know the contents of the same. As per Ex.P2-Mahazar, the same was drawn between 09.00 a.m. and 11.30 a.m. The fact 14 CRL.A. No.3669/2011 remains that PW.2 admits the visit of the police and taking his signature on Ex.P-2.
17. PW.22-Investigating Officer also speaks about Mahazar proceedings. Nothing worth is elicited to him to disbelieve him about Ex.P2. He denied the suggestion that he did not conduct Mahazar as per Ex.P2. Even otherwise, the case is based on the evidence of eyewitnesses. If their evidence is accepted, then discrepancy if any in proving Ex.P2 does not assume significance.
18. It is also to be noted that the accused do not dispute the injuries suffered by the victims. They suggest that those injuries were suffered in road traffic accident while travelling in tum-tum vehicle. Under these circumstances, there is no reason to disbelieve the evidence of PWs.1 to 11, 13, 16 and 22 regarding scene of occurrence.
15 CRL.A. No.3669/2011
19. Hon'ble Supreme Court in the judgment in Chandrasekar and Another (Supra) in paragraph No.10 has held as follows:
"10. Criminal jurisprudence attaches great weightage to the evidence of a person injured in the same occurrence as it presumes that he was speaking the truth unless shown otherwise. Though the law is well settled and precedents abound, reference may usefully be made to Brahm Swaroop v. State of U.P. observing as follows: (SCC p.302, para 28) "22. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with an in-built guarantee of his presence at the scene of the crime and is unlikely to 16 CRL.A. No.3669/2011 spare his actual assailant(s) in order to falsely implicate someone."
(Emphasis supplied) REG. INCIDENT:
20. To prove the guilt of the accused, the prosecution relies upon the evidence of injured witnesses-PWs.3 to 7, PW.1-complainant, eyewitnesses- PWs.8 to 11 & 13 to 16, and PWs.12 & 21 the medical officers. PWs.12 & 21 state that on 07.07.2008, PWs-3 to 7 were brought to them with history of assault. They examined them and issued Wound Certificates as per Exs.P3 to P6. In the cross-examination of these witnesses, neither examination of PWs.3 to 7 nor the injuries noticed by the Medical Officers or the genuineness of the Wound Certificates was disputed. Only the suggestion to them is that those injuries could be accidental injuries.
17 CRL.A. No.3669/2011
21. The particulars of the Wound Certificates of the victims are set out in the below mentioned tabular form:
Witness Exhibit Injuries
name
P.W.5- Ex.P3 Fracture of right
Hanmappa forearm, fracture of
lower part of left radius
and ulna, left ankle foot
crack, lower end ankle
left tibia
PW.6- Ex.P4 Comminuted fracture of
Sharanappa lower end of right tibia,
comminuted fracture of
patella on right side,
lacerated wound on left
parietal region,
contusion on left side of
chest wall and swelling
of left leg
PW.4- Ex.P5 Lacerated wound on
Helageppa right leg, lacerated
wound on right little
finger, lacerated wound
on the back of scalp,
comminuted fracture of
shaft of tibia and fibula
of right leg
PW.3- Ex.P6 Cut lacerated wound on
Basamma left hand and abrasion
of left knee
PW.7- Ex.P9 Abrasion over chin and
Shivamma pain in eyes
18 CRL.A. No.3669/2011
22. In the cross-examination of Medical Officers, the injuries suffered by each of the victims as deposed are not denied. It is only suggested that they are accidental injuries. Thus, the evidence of above witnesses goes to show that the injuries mentioned in the Wound Certificates were suffered by the victims PWs.3 to 7.
23. PWs.3 to 7 have categorically testified that they suffered those injuries due to the assault by the accused as named by them in the evidence. Even for these witnesses, it is suggested that they are the accidental injuries. At the cost of repetition, accused do not suggest the time and place of such accident. There is no reason to disbelieve the evidence of PWs.3 to 7 regarding injuries being homicidal one.
24. Then, the only question is whether all the appellants/accused have caused those injuries. According to the prosecution itself, the incident took 19 CRL.A. No.3669/2011 place during early hours of the day i.e., between 5.00 a.m. and 5.30 a.m. Exs.P-17 and 18 are the Assessment Register Extract of house bearing Nos.842 and 444, which belong to PWs.1 & 5 respectively. In those documents, the dimensions of the properties are not shown. In Ex.P2 - Mahazar, the dimension of the scene of occurrence is shown as 5 x 5 feet. The width of the room of the complainant's house is 10 x 10 feet. Having regard to this, it becomes hard to accept that 24 persons as alleged by the complainant could trespass into the house of that dimension.
25. Further, the prosecution materials clearly show that there was serious enmity between the complainant party and the accused party. The admission of the prosecution witnesses show that, being scared with the complainant party, the accused had left the village and were living in a farm. In this 20 CRL.A. No.3669/2011 background, the possibility of complainant roping all the members of accused party looms large.
26. The complainant himself states that on hearing commotion of PWs.3 and 5, he was scared and locked himself in a room of the house and he did not come out. As per the evidence of prosecution witnesses, PW.1 and his wife were sleeping in the house and PWs.3 & 4 were sleeping on the pile of the house. There is nothing to suggest that there was any window to the room where PW.1 was sleeping and he could see the incident through that. Even in the complaint, he says that PWs-3 & 4 named the assailants before him.
27. PW-8 admits in the cross-examination that during the incident there was no street light. Even in Mahazar Ex.P.2, no source of light at the scene of occurrence is shown. The Investigating Officer has not drawn the scene of occurrence. However, the assailants were known to the victims. Therefore, to fix the identity 21 CRL.A. No.3669/2011 of the assailants, the Court should have accepted the evidence of the victims i.e., PWs.3 to 7.
28. PWs.3 to 7 in their evidence implicate accused No.1-Somappa, accused No.2-Devappa, accused No.6-Siddappa, accused No.10-Kadappa, accused No.13-Manjappa and accused No.20-Sabanna as their assailants. PW.3 states that accused No.13- Manjappa assaulted her with axe and other accused assaulted her brother PW.4 with stick and axe. PW.4 states that accused Nos.2-Devappa, accused No.10- Kadappa and accused No.12-Sangappa assaulted him with axe and his allegations against other accused are omnibus. PW.5 states that accused No.2-Devappa assaulted him with axe and accused No.13-Manjappa and accused No.20-Sabanna assaulted him with clubs and accused Nos.1 and 6 assaulted his son PW.6 with club. PW.6 states that accused No.10-Kadappa, accused No.12-Sangappa and accused No.20-Sabanna 22 CRL.A. No.3669/2011 assaulted him with clubs and accused No.6-Siddappa assaulted him with stone on his leg. Except these statements, other statements with regard to the assault by the accused are omnibus.
29. In the absence of statement regarding injuries to the victims by each of the accused and having regard to the dimensions of the scene of occurrence and also in the background of enmity between the accused and complainant party, the Trial Court fell in error in accepting roping of all the accused/appellants in the case and convicting them. Therefore, the impugned judgment and the order of conviction and sentence sustains only against the accused/appellants Nos.1, 2, 6, 10, 13 and 20.
30. Having regard to the weapons of offence and the nature of injuries caused, the Trial Court was justified in convicting the accused for the offence punishable under Section 307 IPC. Having regard to the 23 CRL.A. No.3669/2011 conviction for the major offence punishable under Section 307 IPC, the Trial Court fell in error again in convicting the accused/appellants for the offences punishable under Sections 324 and 326 IPC which amounts to convicting and sentencing the accused/appellants twice for the same offence.
31. Therefore, the appeal succeeds partly. The impugned judgment and order of conviction and sentence passed by the Trial Court against accused/appellant Nos.1, 2, 6, 10, 13 and 20 for the offences punishable under Sections 143, 147, 148, 448, 307, 435, 327, 336, 504, 506 read with Section 149 of IPC is hereby confirmed.
The impugned judgment and the order of conviction and sentence against all the accused/appellants for the offences punishable under Sections 324 and 326 are hereby set aside. 24 CRL.A. No.3669/2011
Further, the impugned judgment and the order of conviction and sentence against accused/appellant Nos.3 to 5, 7 to 9, 11, 12 14 to 19 is hereby set aside. They are acquitted of all the charges brought against them.
The bail bonds of the said accused/appellants and sureties shall stand cancelled.
Trial court to issue modified conviction warrant accordingly.
Accused Nos.1, 2, 6, 10, 13 and 20 shall surrender before the trial court to serve the sentence.
Sd/-
JUDGE KJJ/Srt