Karnataka High Court
The State Rep By Koppa Police Station vs A N Manjunatha S/O Nagraja Hegde, on 9 January, 2014
Author: K.Bhakthavatsala
Bench: K.Bhakthavatsala
1
CRL.A.No.690/2009
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 09TH DAY OF JANUARY 2014
PRESENT
THE HON'BLE Dr. JUSTICE K.BHAKTHAVATSALA
AND
THE HON'BLE Mr. JUSTICE K.N.KESHAVANARAYANA
CRIMINAL APPEAL No.690/2009
BETWEEN :
The State,
Rep. By Koppa Police Station. ...APPELLANT
(By Sri.B.T.Venkatesh, SPP)
AND :
1. A.N.Manjunatha,
S/o.Nagraja Hegde,
31 years,
2. A.N.Sandesh,
S/o.Nagaraja Hegde,
29 years,
Both are residents of
Achchur,
Lokanathapura,
Koppa Taluk. ...RESPONDENTS
(By Sri.K.Prasanna Shetty &
Dinesh Kumar K.Rao, Advs.)
2
CRL.A.No.690/2009
This Criminal Appeal is filed u/s.378(1) & (3) Cr.P.C.,
by the State PP for the State praying to grant leave to file
an appeal against the Judgement & Order of acquittal
dt.9.4.2009 passed by the Addl. District and Special Judge,
Chikmagalur in Spl.Case No.23/2008 - acquitting the
respondents/accused for the offence p/u/s.307 of IPC &
Sec.3(2)(V) of SC/ST (Prevention of Attrocities) Act read
with Section 34 of IPC.
This Criminal Appeal coming on for hearing, this day,
Dr.Bhakthavatsala, J, delivered the following:
JUDGMENT
This is an appeal filed by the State under Section 378(1) and (3) of Cr.P.C., challenging the Judgment dated 09.04.2009 made in Special Case No.23/2008 on the file of Addl. Sessions Judge at Chikmagalur, acquitting the respondents/accused for the offence punishable under Section 307 read with Section 34 of IPC and under Section 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Section 34 of IPC.
3CRL.A.No.690/2009
2. For the purpose of convenience and better understanding, the respondents are hereinafter referred to as 'Accused Nos.1 and 2' as arraigned in the Sessions case.
3. Brief facts of the case leading to the filing of the appeal may be stated as under:
P.W.1/Rudresh, the complainant/injured and P.W.2/ Annappa, P.W.3/Sridhar, P.W.4/Halayya belong to Adidravida community, are residents of Achchur, Lokanathapura, Koppa Taluk, Chikmagalur district. Accused Nos.1 and 2 are residents of the same village, but belong to some other community. It is stated that P.W.1/Rudresh was due to pay Rs.100/- to Accused No.1. On 16.11.2007 at about 8.30 p.m., when P.W.1/Rudresh and other injured eye-witnesses- P.Ws.2, 3 and 4 were standing in front of PCLD Bank, Maddarmakki Road, situated in Lokanathpura village, Accused No.1 came and demanded P.W.1 to refund the amount of Rs.100/- borrowed from him. For which, P.W.1/Rudresh told him that he had no money. But Accused 4 CRL.A.No.690/2009 No.1 insisted him for repayment of the same and he pushed him (P.W.1). At that time, P.Ws.2 to 4 who were present at the spot told Accused No.1 that they would repay the amount. On the other hand, Accused No.1 called his brother Sandesh/Accused No.2 over phone. After the arrival of Accused No.2, with an intention to kill P.W.1/Rudresh and other eye-witnesses, Accused No.1/Manjunatha assaulted P.W.4/Halayya with a sickle on his right cheek, ear and head. Accused No.2/Sandesh assaulted P.W.2/Annappa with a sickle on his left finger, left elbow, back and head. Accused No.1/Manjunatha also assaulted P.W.3/Sridhar with a sickle on his right leg and below the knee. It is stated that Accused No.2 assaulted P.W.4/Halayya with a sickle on his left shoulder and left thigh and also assaulted P.W.1/Rudresh and P.W.2/Annappa with sickles. The injured/P.W.2/Annappa was taken to PHC, Jayapura and from there, his brother P.W.8/Venkatesh shifted P.W.2 to General Hospital at Koppa. Other injured, viz., P.W.3/Sridhar, P.W.4/Halayya were also taken to 5 CRL.A.No.690/2009 hospital for treatment. Govt. Hospital at Koppa sent MLC report to Koppa Police Station with regard to P.W.2/Annappa as per Ex.P.13. Ex.P.13/MLC intimation was received by Koppa Police Station on the same day, viz., 17.11.2007 at about 9.00 a.m., and at about 9.45 a.m., P.W.1 lodged a complaint with the police as per Ex.P.1. Koppa Police registered a case in Crime No.143/2007 against the Accused Nos.1 and 2 for the offence punishable under Section 307 read with Section 34 of IPC and under Section 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The F.I.R reached the learned Magistrate at 8.15 p.m., on 17.12.2007. On 18.12.2007, the Investigating Officer arrested Accused Nos.1 and 2. The Investigating Officer recovered the sickles used in the commission of offence on the basis of the voluntary statement made by Accused Nos.1 and 2. After the investigation was over, charge-sheet came to be laid against the accused for the above said offences. The case of the accused is of total denial. The accused faced trial 6 CRL.A.No.690/2009 for the above said offences before the Sessions Court. In support of the case of prosecution, it has got examined as many as 15 witnesses, got marked 24 documents and got exhibited M.Os.1 to 9. After the evidence on the side of prosecution was over, statement of accused under Section 313 Cr.P.C., was recorded. The accused have denied all the incriminating circumstances appearing in the evidence of prosecution witnesses. The accused have not adduced defence evidence. The Trial Court, after hearing arguments, perusing oral and documentary evidence on record, came to a conclusion that the prosecution failed to bring home the guilt to the accused for the charges levelled against the accused and recorded an Order of acquittal in their favour. This is impugned in this appeal.
4. Learned Addl. SPP submits that P.W.1/the complainant, who is the owner of the shop, P.Ws.9, 10, 11 and 15/mahazar witnesses have turned hostile, but there was no good ground for the Trial Court to reject the testimony of the injured eye-witness P.W.2/Annappa, 7 CRL.A.No.690/2009 P.W.3/Sridhar and P.W.4/Halayya. Evidence of the injured eye-witness is supported by P.W.6/Somayya (father of P.W.2), P.W.7/Naveen Kumar (nephew of P.W.2) and P.W.8/Venkatesh (brother of P.W.2). Further, P.W.12/Dr.N.R.Ramachandra has deposed that at the instance of Accused Nos.1 and 2, sickles/M.Os.2 and 3 were seized. He submits that the Trial Court erred in acquitting the accused on minor omissions and contradictions and prays that the impugned Judgment may be set aside and the accused may be convicted for the offences for which charges were charged.
5. Learned counsel appearing for the respondents/ accused submits that the very complainant/P.W.1, who is a star witness to the case of prosecution, has not supported the case of prosecution. Apart from that there are major omissions and contradictions with regard to the scene of crime; there is no evidence on record to show that there was street light for the witnesses to witness the alleged incident of assault by the accused and there is no good 8 CRL.A.No.690/2009 ground to disturb the Judgment of acquittal recorded in favour of the accused.
6. In view of the arguments addressed by the learned counsels for the parties, we formulate the following points for our consideration:
"Whether the impugned Judgment of acquittal calls for our interference?
7. At the very outset, it must be mentioned that the whole incident occurred on account of P.W.1 not repaying Rs.100/- which he borrowed from Accused No.1. There is material on record to show that at the time of incident, P.W.1/the complainant and eye-witness and the injured eye-witnesses P.Ws.2, 3 and 4 were present. According to the prosecution, the incident occurred on 16.11.2007 at about 8.30 p.m., in front of the shop of P.W.5/Shekhar. Though P.W.5/Shekhar has turned hostile, there is evidence of the injured eye-witness. There is no major omissions and contradictions. Admittedly, P.W.12/Dr.N.R.Ramachandra, 9 CRL.A.No.690/2009 aged about 50 years, a surgeon in General Hospital at Koppa, has deposed that he examined P.W.2/Annappa on 17.11.2007 at 1.00 a.m., and noticed the following injuries:
i) Incised wound present over left elbow
measuring 6 x 4 x 2 cms;
ii) Incised wound present over right thumb
2 x 1 x 1 cms;
iii) Incised wound present over back
measuring 3 x 2 x ½ cms.
As per the x-ray report by Dr.Udayashankar, Annappa has suffered fracture of ulna-left and base of first metacarpal. He has opined that Injury Nos.1 and 2 are grievous in nature and Injury No.3 is simple in nature. It is further certified that the above said injuries are fresh and bleeding and age of wounds is six hours old. The wound certificate of the injured witness P.W.2/Annappa has been marked as Ex.P.7 and x-ray film as Ex.P.10. Ex.P.8 is the wound certificate of Halaiah (P.W-4) issued by P.W.12. He 10 CRL.A.No.690/2009 has certified that he examined P.W.4/Halaiah on 17.11.2007 and found there simple injuries as under:
i) Incised wound present over vertex measuring 8 cm x 2 cm x 1 cm;
ii) Incised wound present over right mandibular joint measuring 4 x 2 x 1 cm;
iii) Right ear lobe is cut through and through. Wound is black in colour.
Now, we refer to the wound certificate of P.W.3/Sridhara marked as Ex.P.9 and his x-ray film as Ex.P.11. According to Ex.P.9, P.W.12 examined P.W.3 on 07.11.2007 at 11.10 a.m., and noticed the following injuries:
I) Abrasion over the right knee measuring 4 x 3 cms, wound is black in colour.
II) Fracture of left fibula.
P.W.12 has certified that Injury No.1 is simple in nature and Injury No.2 is grievous in nature. Ex.P.10 and Ex.P.11 are the x-ray films pertaining to the case of P.Ws.2 11 CRL.A.No.690/2009 and 3. As per report of x-rays, they have sustained fractures. In the would certificates at Exs.P.7, 8 and 9, the history of assault has been stated.
8. It is in the evidence of P.W.2 that initially, he (P.W.2) was taken to PHC, Jayapura and later on, shifted to General Hospital at Koppa. The incident occurred in a village, the complainant and injured are rustic persons of a village. The contention of learned counsel for respondents/accused with regard to discrepancy as to the time of incident cannot be a good ground to disbelieve the case of the prosecution and the ocular evidence of the injured and the Investigating Officer. P.W.12, the Medical Officer who is a surgeon of General Hospital had accompanied the Investigating Officer to nearby rock and accused took out sickle kept in a bush situated below the rock. He has supported the case of prosecution. In our view, the Investigating Officer has recovered M.Os.2 and 3/sickles at the instance of the Accused Nos.1 and 2 in the presence of P.W.12. The clothes of the victim and sickles 12 CRL.A.No.690/2009 seized in the case were sent for chemical examination. Ex.P.22/FSL report shows that articles seized had blood- stains. Ex.P.23 is the serology report. According to that two shirts, towel and sweater were stained with human blood. It is also stated that one shirt (Serial No.1) and sweater had 'A' group blood; whereas another shirt (Serial No.2) and towel were stained with 'O' group blood. The report of the FSL and serology support the case of prosecution. In our view, there is no satisfactory evidence to convict the accused for the offence punishable under Section 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
9. P.W.2/Annappa and P.W.3/Sridhar have sustained grievous injuries, but not on a vital part. Hence, we hold that accused had no intention to kill P.Ws.2 and 3. It is the case of the prosecution that P.Ws.3 and 4 who were present at the spot, promised the Accused No.1 that they would pay the amount on behalf of P.W.1 and there was altercation between the two groups and Accused No.1 13 CRL.A.No.690/2009 called his brother Accused No.2 to the spot. Under such circumstances, it would meet the ends of justice if the accused are convicted for the offences punishable under Sections 334 and 335 of IPC and award compensation as per Section 357(3) of Cr.P.C., (vide state amendment).
10. The offence under Section 334 of IPC is punishable with imprisonment of either description which may extend to one month, or fine which may extend to five hundred rupees or with both. The offence under Section 335 of IPC is punishable with imprisonment of either description which may extend to four years or fine which may extend to two thousand rupees, or with both.
11. In view of the above, we are of the considered view that the prosecution has proved that Accused Nos.1 and 2 have committed the offence under Section 334 in so far as causing simple injury to P.W.4/Halayya and under Section 335 of IPC for having caused grievous injuries to P.Ws.2 and 3.
14CRL.A.No.690/2009
12. In view of the above, we pass the following Order:
Appeal is partly allowed. The impugned Judgment in so far as acquitting the accused for the offence punishable under Section 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, is confirmed. The Order of acquittal recorded in favour of the accused for the offence punishable under Section 307 read with Section 34 of IPC, is set aside and in modification, Accused Nos.1 and 2 are convicted for the offences punishable under Sections 334 and 335 of IPC. Considering all aspects, Accused Nos.1 and 2 are sentenced to a day's simple imprisonment to be suffered till the rising of the Court for the offences punishable under Sections 334 and 335 of IPC on two counts. We award compensation of Rs.10,000/- each to P.W.2/Annappa and P.W.3/Sridhar and Rs.2,000/- to P.W.4/Halayya. The Accused Nos.1 and 2 are directed to deposit the compensation amount with the Trial Court on or before 29.03.2014, failing which, the compensation 15 CRL.A.No.690/2009 amount shall be recovered from the accused as a land revenue and pay the same to injured witnesses as stated above. Accordingly, the impugned Judgment is modified.
Sd/-
JUDGE Sd/-
JUDGE bnv*