Karnataka High Court
Eshwara vs The State Of Karnataka on 17 March, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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CRL.A No. 100101 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 17TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MR JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO. 100101 OF 2016 (C-)
BETWEEN:
1. ESHWARA
S/O JETTI BASAVARAJAPPA,
AGED ABOUT 42 YEARS,
OCC: DAIRY SECRETARY
2. LAKKAPPA
S/O JETTI BASAVARAJAPPA,
AGED ABOUT 45 YEARS,
OCC: AGRICULTURE
3. SANGANA BASAPPA
S/O KADLENNI BASAPPA,
AGED ABOUT 36 YEARS,
OCC:AGRICULTURE
4. NAGARAJ
S/O JETTI BASAVARAJAPPA,
AGED ABOUT 55 YEARS,
OCC: AGRICULTURE
5. VEERAPPA
S/O KADLENNI BASAPPA,
AGED ABOUT 42 YEARS,
OCC: AGRICULTURE
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CRL.A No. 100101 of 2016
6. MANJAPPA
S/O KADLENNI BASAPPA,
AGED ABOUT 37 YEARS,
OCC: AGRICULTURE
7. BASAVARAJA
S/O KADLENNI BASAPPA,
AGED ABOUT 37 YEARS,
OCC: AGRICULTURE
8. NAGARAJAPPA @ RAJAPPA
S/O KADLENNI SHIVAPPA,
AGED ABOUT 32 YEARS,
OCC: AGRICULTURE
9. KADLENNI SHIVAPPA
S/O SANGANA BASAPPA,
AGED ABOUT 57 YEARS,
OCC: AGRICULTURE
ALL ARE RESIDENTS OF
R/O: HOLALU VILLAGE,
TQ: HUVINAHADAGALLI,
DIST: BALLARI.
... APPELLANTS
(BY SHRI.C.H.JADHAV, SENIOR COUNSEL FOR
SHRI NEELENDRA D.GUNDE, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY HIREHADAGALI POLICE,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
DHARWAD.
... RESPONDENT
(BY SRI.PRASHANTH MOGALI, HCGP)
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CRL.A No. 100101 of 2016
THIS APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C.
SEEKING TO CALL FOR THE RELEVANT RECORDS AND ALLOW THIS
CRIMINAL APPEAL BY SETTING ASIDE THE JUDGMENT AND ORDER
OF CONVICTION AND SENTENCE DATED 28.03.2016 PASSED IN
S.C.NO.70/2011 BY THE III ADDL. DIST. AND SESSIONS JUDGE-
BALLARI (SITTING AT HOSAPETE) THEREBY CONVICTING THE
APPELLANT FOR THE O/P/U/S.307 OF IPC AND SENTENCING HIM TO
SUFFER SIMPLE IMPRISONMENT FOR A PERIOD OF 5 YEARS AND TO
PAY A FINE OF RS.5,000/- IN DEFAULT TO SUFFER SIMPLE
IMPRISONMENT FOR 6 MONTHS, FOR O/P/U/S.148 OF IPC AND
SENTENCING HIM TO SUFFER SIMPLE IMPRISONMENT FOR A PERIOD
OF 1 YEARS AND TO PAY A FINE OF RS.500/- IN DEFAULT TO
SUFFER SIMPLE IMPRISONMENT FOR 10 DAYS.
THIS APPEAL COMING ON FOR FINAL HEARING ON 18.12.2021
AND THE SAME HAVING BEEN HEARD AND RESERVED FOR
PRONOUNCEMENT OF JUDGEMENT, THIS DAY, SURAJ
GOVINDARAJ J., DELIVERED THE FOLLOWING:
JUDGMENT
1. The accused are before this Court aggrieved by the judgment of conviction and order of sentences passed by III Addl. District and Sessions Judge, Ballari, sitting at Hospete, dated 28.03.2016 in S.C.No.70/2011. By way of the said judgment, accused No.1-Eshwar, accused No.3-Lakappa, accused No.4-Sangana Basappa, accused No.5- Nagaraj, accused No.8-Veerappa, accused No.9- Manjappa, accused No.10-Basavaraj, accused No.11- -4- CRL.A No. 100101 of 2016 Nagarajappa and accused No.12-Kadlenni Shivappa were convicted for offences punishable under Sections 148 and 307 read with Section 149 of IPC and they were acquitted for offences punishable under Sections 143, 147, 323, 324, 326, 504, 506 read with Section 149 of IPC. They are sentenced to undergo simple imprisonment for five years for the offence punishable under Section 307 of IPC and to pay a fine of Rs.5,000/- each and in default thereof to undergo simple imprisonment for six months. Further, they are to undergo simple imprisonment for one year for the offences punishable under Section 148 of the IPC and to pay a fine of Rs.500/- each, in default thereof to undergo simple imprisonment for 10 days. The sentences to run concurrently.
2. The case of the prosecution is that on 25.07.2010 at about 6 p.m., accused No.1-Eshwar, accused No.2- Kamaraj, accused No.3-Lakappa, accused No.8- Veerappa and accused No.9-Manjappa had picked up -5- CRL.A No. 100101 of 2016 a quarrel with the complainant and his group members in front of the milk dairy of Holalu village where accused No.1-Eshwar, without any basis, alleged that the PW.2/CW.2-Kantesh was mixing water in the milk at the time of supply to the dairy in furtherance of which there was an altercation. Accused No.1-Eshwar, accused No.2-Kamaraj, accused No.3-Lakappa, accused No.8-Veerappa and accused No.9-Manjappa assaulted the complainant and his group members with hands and stones, pushed the complainant PW.1/CW.1-Basavarajappa into the gutter in front of the dairy. At that time two elders intervened and pacified the quarrel, however, while leaving from that place the accused is stated to have threatened the complainant and his group members.
3. It is alleged that thereafter at 10.30 p.m., on the same day, when the PW.1/complainant- Basavarajappa and PW.2/CW.2-Kantesh, -6- CRL.A No. 100101 of 2016 PW.4/CW.3-Kariappa, PW.3/CW.4-Rudrappa and PW.5/CW.5-Girish were going to their grain Threshing yard in front of the house of accused No.7- Kadlenni Basappa, the accused formed themselves into an unlawful assembly, with an object of eliminating the complainant and his group members on account of the earlier ill-will in front of the milk dairy, assaulted the complainant and his group with stones, sticks, axe and verbally abused, humiliated the complainant and his group, threatened to cause their death in pursuance of which simple injury was caused to PW.1/CW.1-Basavarajappa, PW.5/CW.5- Girish, PW.6/CW.6-Bullamma, the mother of PW.1/CW.1-Basavarajappa, who had come to their rescue as also assaulted PW.7/CW.7-Shobhamma, the wife of the PW.1/CW.1-Basavarajappa, who had also come to their rescue was grievously hurt.
4. In furtherance of the same, a complaint for the offences punishable under Sections 143, 147, 148, -7- CRL.A No. 100101 of 2016 323, 324, 326, 504, 506, 307 read with Section 147 of the IPC had been registered in Cr.No.42/2010 by the Hire Hadagali Police Station, Ballari.
5. Upon investigation having been completed, a charge-
sheet in No.32/2010 had been filed alleging that offences under the aforesaid provisions had been committed by the accused.
6. Upon hearing the accused, the case was committed to the Prl. District and Sessions Judge, Ballari, and made over to the Fast Track Court, III, Hosapete. The accused were secured and were represented by their advocate before the Fast Track Court. Thereafter, the case was transferred to the III Addl. District and Sessions Judge, sitting at Hosapete. The accused were once again secured since they had been released on bail and after hearing the accused and the prosecution, charges were framed for the aforesaid offences read over and explained to the -8- CRL.A No. 100101 of 2016 accused in the language known to them. The accused pleaded not guilty and claimed to be tried.
7. The prosecution in order to prove its case in all examined 15 witnesses PWs-1 to 15, got marked 14 documents as Ex.P.1 to Ex.P.14 and 13 material objects M.Os.1 to 13 in support of its case. The defence marked Ex.D.1 to Ex.D.4 in support of their cases.
8. Upon closure of evidence, the incriminating material against the accused was put across to them and each of their statement under Section 313 of the Cr.p.C. has been recorded. The accused denied the evidence led by the prosecution, they chose not to place any further evidence but however produced copies of the charge-sheet, complaint in Cr.No.72/1998 and an application which had been filed before the JMFC, Hadagali and the RTI Officer.
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9. After hearing both sides, the trial Court passed the above order of conviction and sentence. It is aggrieved by the same that the appellants are before this Court.
10. Shri C.H.Jadhav, learned Senior Counsel appearing for the appellants instructed by Shri Neelendra R.Gunde, learned counsel submits that; 10.1.The order of conviction passed is completely perverse and not maintainable in law or facts. There are no offences which are made out against the accused;
10.2.In the original complaint as filed, there is no allegations as regards any injury having been caused to PW.7/CW.7-Shobhamma, wife of the complainant. It is only later that the said aspect had been brought up during the course of trial;
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CRL.A No. 100101 of 2016 10.3.The initial complaint had been filed insofar as Section 307 of the IPC when the complaint was filed concerning them, it did not concern or include PW.7/CW.7-Shobhamma.
10.4.The trial Court having acquitted the accused in so far as the allegations made in respect of the other injured complainants but convicting the accused as regards the alleged injury caused to PW.7/CW.7-Shobhamma under Section 307 of the IPC cannot be countenanced in law, 10.5.The incident having occurred in front of the house of accused No.7-Kadlenni Basappa, the complainants having explained as to why they came to that spot at that time of the night, the grain Threshing yard is normally used only after harvest and the incident having occurred in the month of July during the rainy season, there was no harvest which required the complainants to go to the grain Threshing yard.
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CRL.A No. 100101 of 2016 Therefore, the entire story of the prosecution is false.
10.6.It is the complainants who had come to the house of the accused and assaulted them, that the complainants who are the aggressors as regards which Cr.No.41/2010 has been registered by Hirehadagali police station. All the prosecution witnesses are related witnesses and there are no independent witnesses, 10.7.The prosecution has withheld independent witnesses though available. Hence, adverse inference would have to be drawn. The case is created by the Investigation Officer to support the prosecution story. There is no credible evidence on record.
10.8.There is delay in the F.I.R being filed as also received by the Court. This delay has been
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CRL.A No. 100101 of 2016 occasioned by the Investigation Officer only to shape the case of the prosecution, 10.9.That the complainants had formed themselves into an unlawful assembly and had come to the house of the accused and assaulted the accused. In this connection, he submits that the accused have lodged a complaint in Cr.No.41/2010 on which basis S.C.No.89/2011 was registered. accused No.4-Sangana Basappa accused No.5-Nagaraj and accused No.12-Kadlenni Shivappa had not been named in the complaint but have been added in the charge-sheet. There is no basis for them being added. PW.6/CW.6-Bullamma and PW.7/CW.7- Shobhamma, admittedly were not in the spot when the altercation happened. They came half-an-hour later, which statement cannot be believed since it is not anybody's case that the altercation lasted for half-an-hour.
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CRL.A No. 100101 of 2016 10.10. He relies upon the decision of this Court in STATE VS. SHEENAPPA GOWDA AND OTHERS reported in 2011 (4) KCCR 2759, more particularly, paragraph 11 thereof which is reproduced hereunder for easy reference:
"11. Therefore, the question for determination is limited to find out whether the said injury No.2 is proved to be a grievous injury sustained by PW.4. It is well settled that in criminal cases, the burden of proving the guilt of the accused is always on the prosecution and that burden would not shift unless there is a presumption or defence as enumerated in the Indian Penal Code is taken by the accused. In this case, the defence taken by the accused is one of denial. It is clear from the evidence of PW.1 that he has given description of injury on physical' examination of PW.4 and has come to the conclusion that there was fracture of the middle phalanx. It is well settled that when the prosecution alleges that grievous injury has been caused, it is necessary for the prosecution to prove the same beyond reasonable doubt. The evidence of PW.1 would only show that there was injury as described in the wound certificate - Ex.P2. When PW.1 suspected such fracture, he ought to have referred the injured - PW.4 for taking X-ray to confirm his finding that there is fracture of middle phalanx. It is now well settled hat unless the prosecution produces the X-ray for confirmation of fracture opined by the Doctor on medical examination clinically, it cannot be said that the accused have caused grievous injury of fracture. It is true that in the cross-examination
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CRL.A No. 100101 of 2016 of PW.1, the learned Counsel appearing for the accused has not disputed the nature of injuries spoken to by PW.1. However, he same would not dispense with the production the X-ray by the prosecution to prove beyond reasonable doubt that the injured had sustained fracture of middle phalanx, which is an opinion given by PW.1 Doctor only on clinical examination of PW.4, the injured. Therefore, it is clear that the finding of the learned Sessions Judge holding that the prosecution has failed to prove that the accused Nos.1 to 3 and 5 have committed the offence punishable under Section 326 of I.P.C. and the offence committed by them falls within the ambit of Section 324 of I.P.C. is justified."
10.11. By relying on the above judgment, he submits that, it was required that an X-ray had to be produced and marked in evidence to establish the fracture which had been caused. The non- production of the X-ray goes to the root of the matter. The mere production of wound certificate would not be sufficient.
11. Shri Prashanth Mogali, learned High Court Government Pleader supports the case of the prosecution. By referring to the evidence of the
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CRL.A No. 100101 of 2016 Investigation Officer, he submits that the investigation has been carried out properly, the wound certificates establish the injuries which have been caused, the injury caused to PW.7/CW.7- Shobhamma being grievous in nature, the sticks, stones etc., which had been used were so used with an intention to cause death of the complainant and his family members. It is only fortunate that no death has occurred. The attempt made by the accused was to cause such death. Therefore, the trial Court has rightly convicted the accused for offences punishable under Section 307 of the IPC and this Court would not be required to intercede in the matter.
12. It is in the above background that we are required to re-appreciate the evidence on record to ascertain if the prosecution has been able to establish the guilt of the accused, the offences that they were charged and punished with.
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CRL.A No. 100101 of 2016
13. Before we advert to the evidence on record, there is another aspect that would be required to be dealt by us, inasmuch as the above appeal arises out of Cr.No.42/2010 in which charge-sheet No.32/2010 had been filed resulting in the proceedings in S.C.No.70/2011 from which the above appeal in Crl.A.No.100101/2016 has been filed. There is another complaint in Cr.No.41/2010 which had been lodged on 25.07.2010 in which charge-sheet No.4/2011 had been submitted resulting in proceedings in S.C.No.89/2011 from which the appeal in Crl.A.No.100106/2016 is before us. Cr.No.41/2010 and Cr.No.42/2010 are stated to be complaint and a counter complaint as regards the same incident which occurred on the same day. In Cr.No.41/2010 it is alleged that the incident occurred at 12 in the mid night, while in Cr. No.42/2010 it is alleged that the incident occurred around 10.30 p.m. on 25.07.2010. This aspect of whether the event in
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CRL.A No. 100101 of 2016 question in the present matter occurred at 12 mid night or at 10.30 p.m. would have to be determined, in order to arrive at a conclusion whether the present matter is a complaint or a counter complaint.
14. PW.1/CW.1-Basavarajappa whose evidence was recorded on 30.10.2013 has stated that; 14.1. He knows the accused persons. PW.2/CW.2- Kantesh is his son, PW.4/CW.3-Kariyappa is his younger brother, PW.3/CW.4-Rudrappa is also his younger brother, PW.5/CW.5-Girish is his son, PW.6/CW.6-Bullamma is his mother, PW.7/CW.7-Shobhamma is his wife. 14.2. He has stated that on 25.07.2010 at about 6 p.m., there was an altercation near the milk dairy of his village when accused No.1 Eshwara, who was the Secretary of the Milk Dairy raised a quarrel with his son PW.2/CW.2-Kantesh that he had mixed water in the milk and in this
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CRL.A No. 100101 of 2016 regard, accused No.1-Eshwar, accused No.3- Lakappa, accused No.2-Kamaraj, accused No.8- Veerappa and accused No.9-Manjappa had assaulted his son with hands. while he was going on the road from his land, seeing the assault on his son he went there and asked the accused the reason for assaulting his son, at which point the said 5 accused assaulted him on his back with stones and pushed him into a drainage, at which time PW.8/CW.8-Ashok and CW.9-Manjappa had pacified the quarrel by assuring that they would conduct a panchayath to resolve the issue.
14.3. He has further stated that at 10.30 p.m. on the same day, when he, PW.5/CW.5-Girish, PW.2/CW.2-Kantesh along with PW.4/CW.3- Kariyappa and PW.3/CW.4-Rudrappa were going to their grain Threshing yard and were passing by the house of Shantappanavara
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CRL.A No. 100101 of 2016 Basappa, the accused persons armed with clubs, axe and stones attacked them, accused No.9-Manjappa assaulted on the head and left shoulder of PW.2/CW.2-Kantesh with club and kicked his testicles, accused No.3-Lakappa assaulted on the head of PW.4/CW.3-Kariyappa with an axe, accused No.11 Nagarajappa @ Rajappa assaulted the right waist of PW.4/CW.3-Kariyappa with a club, accused No.1 Eshwara kicked the testicles of PW.4/CW.3-Kariyappa, accused No.8 Veerappa Kadlenni assaulted on the back portion of the head of PW.3/CW.4-Rudrappa with a club and also assaulted left elbow of PW.3/CW.4- Rudrappa, accused No.10-Basavaraj assaulted on the back portion of the head of PW.5/ CW.5-Girish, when he fell down, accused No.10-Basavaraj assaulted him with his left knee on the left chest of PW.5/CW.5-Girish,
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CRL.A No. 100101 of 2016 accused No.5 Nagaraja Jetti had beaten the right shoulder of PW.5/CW.5-Girish. 14.4. At that time, his wife PW.7/CW.7-Shobhamma and mother PW.6/CW.6-Bullamma had come there. When accused No.10-Basavaraj assaulted PW.7/CW.7-Shobhamma on her hand with a club, when her hand got fractured, thereafter he assaulted all over the body of his wife with the club, accused No.2 - Kamaraja @ Honnappa Jetti and accused No.4 Sangana Basappa assaulted on the waist of his mother PW.6/CW.6-Bullamma with stones, accused No.7 Kadlenni Basavaraja had assaulted the back of the complainant with his hands. 14.5. CW.10-Virupakshappa, CW.11-Shivappa, CW.9- Manjapppa and PW.8/CW.8-Ashok who came to the spot, snatched the stones, clubs and axe from the accused and had thrown the said weapons to the ground and pacified the quarrel.
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CRL.A No. 100101 of 2016 14.6. It is on this basis that a complaint had been lodged that the accused persons assaulted the complainant and others with an intention to murder them.
14.7. He has stated that the said CW.11-Shivappa, CW.9-Manjapppa, CW.10-Virupakshappa and PW.8/CW.8-Ashok had sent his brothers PW.4/CW.3-Kariyappa, PW.3/CW.4-Rudrappa and his sons PW.5/CW.5-Girish and PW.2/CW.2-Kantesh as also PW.6/CW.6- Bullamma and PW.7/CW.7-Shobhamma went to Haveri Government Hospital for treatment at about 11.15 p.m. He has further stated that Muddannavara Bheemanagoudar, Devendrappa, Nagappa, Rajappa had called him to conduct a panchayath and instructed him not to lodge a police complaint. However, since the accused persons went to the police station to lodge a complaint against him and his family
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CRL.A No. 100101 of 2016 members, he also went to the police outpost at Holalu village and lodged the complaint against the accused persons.
14.8. He has identified his complaint as per Ex.P.1 and his signature as Ex.P.1 (a). He has identified the axe with wooden handle as M.O.1, 5 wooden clubs as M.Os.2 to 6 and 4 stones as M.Os.7 to 10 which had been used to assault him at 6 p.m. in front of the milk dairy on that day.
14.9. He has identified the 3 stones used to assault his mother PW.6/CW.6-Bullamma at 10.30 p.m. which was marked as M.Os.11 to 13.
14.10. During the course of cross-examination, he has stated that he had orally lodged a complaint at 2'0 clock at Holalu outpost, which was reduced in writing by the police, he has stated that he was with the panchayathdaars
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CRL.A No. 100101 of 2016 namely Muddannavar Bheemanagoudar, Nagaraja, Rajappa and Devendrappa till 2 a.m. (night).
14.11. He admits that there is a Government Hospital at Hirehadagali village which is at a distance of 14 kms from Holalu village. He has also admitted that there is another Government Hospital at Guttal village which is at a distance of 10 kms from Holalu village and there is another Government Hospital at Mylara village which is about 3 kms from Holalu village. He has further admitted that there is another Government Hospital at Huvinahadagali town which is about 25 kms from Holalu village, that the Government Hospital at Haveri is about 35 kms from Holalu village.
14.12. He has admitted that the distance of the Grain Threshing yard of PW.8/CW.8-Ashok, CW.11- Shivappa, CW.10-Virupakshappa and CW.9-
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CRL.A No. 100101 of 2016 Manjapppa to be at a distance of about 200 ft. from the place of incident.
14.13. Though he states that PW.8/CW.8-Ashok has a house in his grain Threshing yard, he states that the same is used as cattle shed and all the others have their houses in Holalu village. He has stated that the house of PW.8/CW.8-Ashok situated in the village is about 300 to 400 ft. from his grain Threshing yard. The house of CW.9-Manjapppa is opposite to the old bus stand which is at a distance of 200 ft from the house of accused No.7-Kadlenni Basappa. He has admitted that the road in front of Kadlenni Basavaraja's house connects to Darga road which proceeds North and joins Hadagali road and his land is at a distance of 400 ft. after passing Hadagali road. He has however admitted that he can reach his land from the
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CRL.A No. 100101 of 2016 bus stand going North on Darga road and joining Hadagali road.
14.14. He has denied that there is a case in S.C.No.89/2011 which is pending against him, his sons and three brothers. He has further denied that the said case pertains to the murder of Kamaraj(accused No.2) and injuries caused to several others.
14.15. As regards the incident that occurred in front of the dairy, he has stated that accused No.1- Eshwar had beaten on the back of his son PW.2/CW.2-Kantesh by hands, accused No.2- Kamaraj had beaten on the back of his son by hands, accused No.3 Lakkappa, accused No.8 Veerappa and accused No.9 Manjappa had also beaten on the back of PW.2/CW.2-Kantesh by hands, accused No.2 Kamaraja, accused No.3 Lakkappa, accused No.8 Veerappa, accused No.9 Manjappa had also assaulted him on his
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CRL.A No. 100101 of 2016 back and however, his shirt did not get soiled when he was pushed into the drainage since there was no dirty water in the drainage. He has stated that there is no ill-will between him and the accused persons prior to the altercation. He has denied that there was no assault at the milk dairy. He has stated that in his house every day one or two male persons used to sleep and the other male persons used to sleep in the grain Threshing yard. His younger brothers PW.4/CW.3-Kariyappa and PW.3/CW.4-Rudrappa were married prior to the year 2010 and their wives were living with them, his younger brother Ramesh was not married in the year 2010 and his sons were also not married, witness corrects the statement by stating that his brother Ramesh was married prior to the year 2010 and his wife was also living with him.
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CRL.A No. 100101 of 2016 14.16. He has stated that all of them did not go together to Grain Threshing yard, PW.2/CW.2- Kantesh went first followed by the complainant PW.1/ CW.1 - Basavarajappa, PW.4/CW.3- Kariyappa, PW.3/CW.4-Rudrappa and PW.5/CW.5-Girish. He has stated that at that time the accused had once again asked why they were mixing water in the milk and started quarrel, when he had informed that they are not mixing water in the milk. He has again reiterated the manner in which the assault was made by the accused.
14.17. He has stated about he having taken treatment at Government Hospital, Holalu itself. He did not say anything about the incident to the doctor, he does not know how accused No.2 Kamaraja died in the incident or about accused No.3 Lakkappa, accused No.8 Veerappa, accused No.9 Manjappa and accused No.10
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CRL.A No. 100101 of 2016 Basavaraja having sustained injuries in the altercation.
14.18. He has denied that at about 11.30 p.m., he, his sons and 3 brothers trespassed into the house of accused No.7-Kadlenni Basappa and had a quarrel. He has denied that in the said house of accused No.7- Kadlenni Basappa, he and the others had assaulted accused No.3 Lakkappa, accused No.8 Veerappa, accused No.9 Manjappa, accused No.10 Basavaraja and accused No.2 Kamaraja, with clubs, stones, axe. He has denied that his mother and wife came later at the time of altercation and in the friction of that altercation, they fell down and sustained injuries. He has denied that the complaint is a false one and filed on account of political ill will.
15. P.W.2/CW.2-Kantesh in his deposition recorded on 06.11.2013 has;
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CRL.A No. 100101 of 2016 15.1.Described the relationship between the various witnesses and reiterated what has been stated by PW.1/CW.1-Basavarajappa, he has also described the manner in which the assault occurred which is more or less identical to what PW.1/CW.1-Basavarajappa has said. 15.2.He has also spoken about the intervention of CW.11-Shivappa, CW.10-Virupakshappa and PW.8/CW.8-Ashok to pacify the quarrel and sending them to the Haveri hospital. 15.3.In the cross-examination, he has stated that he was admitted as an inpatient for 5 days in the Government Hospital at Haveri. He has stated that at the time when the altercation happened at the dairy, there were other persons also sitting near the dairy. He has stated that they are having 40 cows and they are living in joint family. He has further stated that there are
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CRL.A No. 100101 of 2016 standing crops of maize in their land aged about 60 days.
15.4.He has denied that he had quarreled with accused No.1-Eshwar when he asked him not to supply milk by mixing the water. He has also denied that neither he nor his father were assaulted near the dairy. He has stated that though he had given the name of accused No.6-Jetti Basavarajappa to the police, he did not abuse or assault but was a silent spectator. He has stated that the police persons who came to the spot and took them to the hospital. He does not know the name of the said police persons. He has stated that they reached the hospital at about 11.45 p.m. He states that he does not know how accused No.2 Kamaraja died or accused No.3-Lakkappa, accused No.8- Veerappa, accused No.9-Manjappa and accused No.10-Basavaraja sustained injuries.
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CRL.A No. 100101 of 2016
16. PW.3/CW.4-Rudrappa in his evidence recorded on 06.11.2013 has stated that:
16.1.PW.1/CW.1-Basavarajappa had informed about the quarrel that had taken place on 25.07.2010 at 6 p.m. near the milk dairy and how accused No.1-Eshwar and other 4 persons assaulted PW.1/CW.1-Basavarajappa and PW.2/CW.2-
Kantesh.
16.2.He has also stated about how they were going towards the Grain Threshing yard and the assault in front of Shantappa's house by describing more or less the same as what was described by PW.1/CW.1-Basavarajappa. 16.3.In the cross-examination, he has stated that they were going together to the grain Threshing yard but were going one after the other with a distance of 15 to 20 steps between them. PW.2/CW.2-Kantesh was going ahead, the
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CRL.A No. 100101 of 2016 accused were standing near the grain Threshing yard of Kundugol and simultaneously assaulted. He has stated that the quarrel lasted for half- an-hour. He has denied that his mother PW.6/CW.6-Bullamma was not at the place because she was aged about 75 years and requires assistance to walk.
16.4.He states that the neighbour did not come to stop the quarrel, PW.8/CW.8-Ashok, CW.9- Manjappa and others came there. PW.8/CW.8- Ashok's house is at a distance of 11 length of pipe from the spot (one length of pipe being equal to 20 ft.) He has stated that he was also hospitalized but does not remember for how many days. He has admitted that there is a Sessions Case pending before the Court against him, his brothers and certain others for having caused the murder of accused No.2-Kamaraj and injuries to accused
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CRL.A No. 100101 of 2016 No.3 Lakappa, accused No.8 Veerappa, accused No.9 Manjappa and accused No.10-Basavaraj. He has denied that the complainant and the accused persons are not in good terms for 15 years.
17. PW.4/CW.3-Kariyappa in his evidence recorded on 08.01.2014 has also stated;
17.1.About the relationship between the various witnesses and how the incident occurred in the same manner as that stated by PW.1/CW.1- Basavarajappa, PW.2/CW.2-Kantesh and PW.3/CW.4-Rudrappa.
17.2.In the cross-examination, he has stated that the police took him and the others to Government Hospital, Haveri. He has reiterated how the assault happened. He has denied that there was any other quarrel in front of the house of accused No.7-Kadlenni
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CRL.A No. 100101 of 2016 Basavaraja except the quarrel complained of. He denied that they were not in good terms with accused persons since 1998. He has stated that there are 50 persons who had gathered at the spot of the quarrel. The police persons also came at the time when the quarrel was taking place and took then to Government Hospital, Haveri, for treatment and they were there in the said hospital for treatment as an inpatient for 3 days. They had not informed the doctor about who assaulted them. He has admitted that a Sessions Case is pending before the Court for committing the murder of Kamaraja and assaulting others. He has denied rest of the suggestions.
18. PW.5/CW.5-Girish whose evidence was recorded on 08.01.2014 has deposed about 18.1.How when his younger brother PW.2/CW.2- Kantesh had gone to the dairy on 25.07.2010
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CRL.A No. 100101 of 2016 at 6 p.m., accused No.1-Eshwar and others having assaulted his brother and father. He has also described how the incident occurred at 10.30 p.m and the accused had assaulted them, more or less in the same manner as stated by PW.1/CW.1-Basavarajappa. During the course of cross-examination, he has stated that the police took them to the Government Hospital, Haveri and he was there for 4 days as an inpatient. He has denied rest of the suggestions including the suggestion that there was old enmity since 1998 against the accused.
19. PW.6/CW.6-Bullamma has stated in her evidence recorded on 24.03.2014 about the relationship between the witnesses and how the incident happened in a shorter version of what is deposed by PW.1/CW.1-Basavarajappa. During the course of cross-examination, she has answered about the incident that took place in the milk dairy and the
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CRL.A No. 100101 of 2016 incident that took place in front of the house of accused No.7-Kadlenni Basavaraja. She has denied that no quarrel happened. She heard the commotion and went to the spot. She cannot say how many people had gathered at the time of the quarrel. She denied that her sons and grandsons had gone to the house of accused No.2-Kamaraj and while they were trying to assault accused No.2-Kamaraj they received blows from their own people and she and her daughter-in-law received blows from her own people when they tried to pacify the quarrel.
20. PW.7/CW.7-Shobhamma in her deposition recorded on 24.03.2014 stated about her relationship with the other witnesses. She has deposed about the incident before the dairy, she has also deposed about the incident in the evening near the house of Shanthappa and of accused No.12-Kadlenni Shivappa having assaulted on her left hand with a club resulting in fracture as also he having assaulted all parts of the
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CRL.A No. 100101 of 2016 body with the club. She has also spoken about the assaults on the other witnesses.
21. In the cross-examination on 07.04.2014, she has denied that there was no assault on her son or her husband near the milk dairy. She has stated that after hearing the sounds of the quarrel, she and her mother-in-law went to the spot of the quarrel. She has stated about the various assaults committed by each of the accused on the witnesses. She has stated of accused No.2-Kamaraj having assaulted the waist of PW.6/CW.6-Bullamma with stone as also of accused No.4-Sangana Basappa assaulting the waist of PW.6/CW.6-Bullamma. But, she cannot say on which side of the waist. She further states that accused No.4-Sangana Basappa had pushed her. She has stated about accused No.12-Kadlenni Shivappa having assaulted on her left wrist using a club resulting in the fracture as also of him having assaulted in the front portion and back portion of both
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CRL.A No. 100101 of 2016 thighs with a club as also on both the hips. She is unable to say how many blows she received. She has stated about police having come to the spot and taking all the injured persons to the police station and thereafter to the Government Hospital at Haveri for treatment. She states that they were in the hospital for 8 days. She has denied that her husband, sons and brothers of her husband went to the house of accused No.2-Kamaraj and assaulted him and murdered him as also caused injuries to others.
22. PW.8/CW.8-Ashok in his deposition recorded on 12.08.2015 has admitted knowing the complainant and the witnesses. He has stated that; 22.1.It is accused No.1-Eshwar who is the Secretary of the dairy. He has also spoken about the incident at the dairy on 25.07.2010, about himself and PW.9/CW.13-Lakappa having pacified the fight.
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CRL.A No. 100101 of 2016 22.2. He has also spoken of the incident at 10:30 p.m. on that night when the accused is stated to have assaulted PW.1/CW.1-Basavarajappa and others in front of the house of accused No.7-Kadlenni Basappa with sticks and stones, that he along with CW.10-Virupakshappa and CW.11-Shivappa pacified that fight. At that time, the accused threw the axe but threatened that the complainants were spared on that day but they will not let them live. 22.3.At 11 p.m., he has stated that the police took the injured to Haveri hospital.
22.4.He has stated that on 26.07.2010 between 3.00 to 3.45 p.m., police came near the dairy, drew up a panchnama after he and others showed them the spot and seized the stones. He says thereafter between 5.00 to 5.45 p.m. near the house of Basavarajappa Kadlenni(accused No.7), the scene of occurrence was shown
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CRL.A No. 100101 of 2016 where they seized 5 sticks, 3 stones and 1 axe. A panchnama was made at the spot. He has identified the panchnama carried out at the dairy circle as Ex.P.2 and his signature as Ex.P.2 (a). He has identified the panchnama at the house of Basavarajappa Kadlenni(accused No.7) which is marked as Ex.P.3 and his signature was marked as Ex.P.3(a) and the material objects namely, the stones, sticks etc., were marked as M.Os.1 to 13.
22.5.During the course of cross-examination, he has admitted that he is an accused in C.C.No.128/1999 but he does not know the accused number. He states that CW.10- Virupakshappa and CW.11-Shivappa from his sect and PW.13/CW.12-Basvana Gouda is his brother. PW.9/CW.13-Lakappa belongs to his sect. He states that he does not know whether CW.10-Virupakshappa, CW.11-Shivappa,
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CRL.A No. 100101 of 2016
PW.13/CW.12-Basvana Gouda and PW.9/CW.13-Lakappa are also accused in the aforesaid case.
22.6.He states that he saw PW.2/CW.2-Kantesh on his way to his dairy. The fight started at 6 p.m. when accused No.1-Eshwar hit the first blow. Thereafter, rest of the accused started to fight. The fight lasted for 20 minutes. When the complainant came, thereafter continued for another 30 minutes.
22.7. He along with certain others had stopped the fight stating that the panchayath could be conducted. However, no panchayath was conducted.
22.8.He has admitted that there is a police outpost at 500 metres from the milk dairy, a bus stand 300 metres from the dairy.
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CRL.A No. 100101 of 2016 22.9.He states that it had just rained that night.
There was no harvest made and no functions had been celebrated. He has generally spoken of the locations of the houses of the accused and the complainants. He has stated that second fight started at 10:30 p.m. on a Friday night. CW.10-Virupakshappa and CW.11- Shivappa were with him and CW.9-Manjapppa had not come at that time. He has stated about the incident which occurred at 10:30 p.m. and the assault committed by the accused and the complainants. He has stated that PW.1/CW.1-Basavarajappa, PW.2/CW.2- Kantesh and PW.3/CW.4-Rudrappa as also PW.4/CW.3-Kariyappa had suffered bleeding injuries on their head and blood had fallen on the shirts and on the ground. He has shown the spot to the police where the blood had fallen. He has stated that since it had rained
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CRL.A No. 100101 of 2016 for three hours in the evening, it might have got cleared.
22.10. He had stated about PW.6/CW.6-Bullamma and PW.7/CW.7-Shobhamma having come after 30 minutes after the fight started. He stated that the fight lasted for 30 minutes. He had called the ambulance from Haveri Hospital though there were other hospitals, but they did not have any facilities. He states that he had informed the police about the occurrence of the event at 11:00 p.m. that night. Thereafter, the injured were taken to the hospital. 22.11. He knows about accused No.2-Kamaraj having expired. However, he does not know that he was murdered. He does not know about the injuries being caused to accused No.3-Lakappa, accused No.8-Veerappa, accused No.9- Manjappa and accused No.10-Basavaraj. He has denied that the complainant and his family
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CRL.A No. 100101 of 2016 members had gone to accused No.7-Kadlenni Basappa's house and assaulted him at 11 p.m. on the same day. He denies that during that time, the complainant and his family members had got hit by their own group. He states that he cannot identify as to which accused used which club/wooden stick.
23. PW.9/CW.13-Lakkappa in his deposition recorded on 12.08.2015 has stated that he knows PW.8/CW.8- Ashok as also PW.13/CW.12-Basvana Gouda. He has stated that he was called to the milk dairy on 25.07.2010 for conducting a mahazar which was conducted between 3.00 to 3.45 p.m. He has stated that the police had seized a stone and axe from the said spot. At the time, PW.8/CW.8-Ashok was also present. He admits having signed the mahazar. He identifies the mahazar as per Ex.P.2 and his signature as per Ex.P.2 (b). He has also identified the panchnama at the scene of occurrence which has
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CRL.A No. 100101 of 2016 been identified as Ex.P.3 and his signature at Ex.P.3(b). He denies any knowledge about the proceeding in C.C. No.128/1999 pending against him and 40 other accused. He denies that accused No.5- Nagaraj has filed a complaint against him and 40 other persons. He states that he would not be able to identify which of the stones had been taken from which place and there are no distinguishing marks on the stones. He has denied rest of the suggestions and supported the case of the prosecution.
24. PW.10/CW.15-Lingappa whose deposition was recorded on 16.09.2015 has stated that he was an Assistant Engineer in Hoovinahadagali. At the request of the police, he has prepared the sketch of the two spots which have been identified and marked as Exs.P.4 and 5 and his signatures have been marked as Ex.P.4 (a) and Ex.P.5 (a) respectively. In the cross-examination, he has stated that Ex.P.4 includes the dairy both nearby and that there is a
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CRL.A No. 100101 of 2016 street light. He has prepared a rough sketch and a note at the spot and prepared Ex.P.4 and Ex.P.5 based on the said sketch. He has not given rough sketch to the police.
25. PW.11/CW.14-Dr Alleppa Soudi, a Senior Medical Officer, Haveri, whose deposition was recorded on 28.10.2015. He has stated that a. At about 2.30 p.m., the injured PW.2/CW.2- Kantesh, PW.4/CW.3-Kariyappa, PW.3/CW.4- Rudrappa, PW.5/CW.5-Girish, PW.6/CW.6- Bullamma and PW.7/CW.7-Shobhamma were brought by the police for treatment with history of assault on 25.10.2015. He has examined the injured and noticed lacerated wounds. b. He states that the injuries which had been caused to the complainant and his family members could have been inflicted by a club.
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CRL.A No. 100101 of 2016 He has stated about the complainant and his family members being injured as under:
"..... I have examined injured and noticed lacerated on right parietal area measuring 5x1/2 cm, tenderness on right shoulder join, on Rudrappa and those were simple in nature. Now I see in the certificate issued by me it is marked Exp 6 and signature i.e., Exp 6 age of injury was 6 to 8 hours, injurious could be inflicted by club.
I noticed lacerated wound on right partial of injured Kariyappa and it was measuring 5 x ½ Cm. and it was simple in nature age of injury of 6 to 8 hrs, I have issued certificated marked as Exp 7 and signature at Exp 7(a). The said injury could be inflicted by axe., I have noticed abrasion on right wrist join of Kantesh measrukgnn ½ x ½ Cm, and laceration on right partial area measuring ½ x ½ cm and those were simple in nature, age of injury was 6 to 8 and signature Exp8(a). I have noticed abrasion on left forearm measuring ½ x ½ cm, swelling and tenderness on left forearm, abrasion on left forearm measuring 1/2 x ½ cm, swelling and tenderness on left forearm, abrasion right writ join measuring 1 x ½ cm, contusion over the left thigh measuring 5x5 cm, and fracture of lower 1/3 of ulna bone on left side and it was grievous in nature and age of injury 6 to 8 hrs, and those could be inflicted by club. Now is see the certificate marked as Exp 9 and signature Exp 9(a). I have noticed that noticed tenderness on right glutial reason, and it was simple in nature and it could be inflicted by stone and age of injury of 6 to 8 hrs, now is see the certificate marked as Exp 10 and signature Exp 10(a). I have noticed bite marked on right shoulder joint measuring 5 x
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3 cm, lacerated wound on occipital reasons or area measuring 2x ½ cm, and those were simple in nature and could be inflicted by human bite and assaulting with club, and age of injury 6 to 8 hrs, now I see the certificate marked as Exp 11 and signature Exp 11 (a)".
c. In the cross-examination, he has stated that he would make a thorough enquiry of history before giving treatment. He has stated that the lacerations could be inflicted even with blunt weapon. He has effected the entries in the MLC register. He has denied that he has deposed falsely.
26. PW.12/CW.16-Shadakshari Patil, ASI in his evidence recorded on 28.10.2015 has stated that he was the ASI of Hadagali at the relevant time. On 26.07.2010 at 4:45 a.m., the complainant PW.1/ CW.1- Basavarajappa came to the police station and filed a complaint which he recognises as Ex.P.1. He states that he was not knowing about the incident before 4:45 a.m. on 27.06.2010 and that neither he nor the other constable had gone to the spot. He has
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CRL.A No. 100101 of 2016 denied that he has prepared the complaint at 1:30 p.m. on 26.10.2010 (might be 26.07.2010). He was knowing that accused No.2-Kamaraj was admitted in the hospital after the assault. He does not know when he died. He has denied that he has taken a false complaint on political pressure.
27. PW.13/CW.12-Basavanagouda during his examination on 09.12.2015 has stated that he knows PW.8/CW.8-Ashok and PW.9/CW.13-Lakappa and states that on 25.07.2010 at 3:30 pm, the police had called him to the dairy in the village where a panchnama was carried out. He states that the accused and the complainants had fought at the said place. After panchnama, 4 stones were seized. He states that PW.9/CW.13-Lakappa was with him and PW.8/CW.8-Ashok showed the spot. The police after completing the panchnama took the stones. He recognised panchnama Ex.P.2. He states that thereafter the police took him to accused No.7-
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CRL.A No. 100101 of 2016 Kadlenni Basavaraja's house where 5 sticks, 3 stones and 1 axe were laying. He was told that a quarrel had taken place. Thereafter, they conducted the panchnama and took his signature. They also took away the material objects. He has identified Ex.P.3 to be the panchnama of the said spot. In the cross- examination, he has admitted that he is also an accused in CC No.128/1999 but does not know as to which accused. He does not know what day of the week it was when the panchnama was carried out. The police constable had come to call him. He does not know his name. The scene of crime is nearly 0.5 kms from his house. The description of 5 sticks has been made in the panchnama. He does no know where the said sticks came from. He states that these are common sticks which are available in anybody's house. He has supported the case of the prosecution.
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CRL.A No. 100101 of 2016
28. PW.14/CW.17-D Hanumanthappa in his statement recorded on 09.12.2015 has stated that he was the PSI of Hirehadagali police station on 26.07.2010. At about 6:30 a.m., the ASI, Holalu Sub police station had sent a written complaint through Head Constable No.338 which he registered as Cr.No.42/2010, prepared the FIR and sent it to the Court. On the very same day, the investigation in this matter and another matter was handed over to Shri Nagappa, ASI, He has identified the FIR as Ex.P.12. In the cross-examination, he has denied that the complaint is given at 1 o'clock.
29. PW.15/CW.18-Nagappa, in his deposition recorded on 01.02.2016 has stated that;
a. He was the ASI of Hirehadagali police station.
On 26.07.2010, the PSI had handed over the above matter to him for investigation. He has stated that he went to the spot along with PW.13/CW.12-Basvana Gouda and
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CRL.A No. 100101 of 2016 PW.9/CW.13-Lakappa and conducted a panchnama in their presence at which time PW.8/CW.8-Ashok was present there and he showed the place of occurrence of the crime. The panchnama was conducted between 3.00 to 3.40 p.m. when 4 stones were seized as per Ex.P.2, panchnama was recorded which is as per M.Os.7 to 10.
b. Thereafter, PW.8/CW.8-Ashok showed them the place in front of accused No.7-Kadlenni Basappa's house where another panchnama was conducted as per Ex.P.3 where 5 sticks, 3 stones and one axe were seized which he identified as M.O.7 being the axe, M.Os.2 to 6 being the sticks and M.Os.11 to 13 being the stones.
c. He states that he recorded the statements of PW.8/CW.8-Ashok, CW.9-Manjapppa, CW.10- Virupakshappa and CW.11-Shivappa. Later on,
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CRL.A No. 100101 of 2016 on 31.07.2010, he visited Haveri district hospital, where he recorded the statements of PW.2/CW.2-Kantesh, PW.4/CW.3-Kariyappa, PW.3/CW.4-Rudrappa, PW.5/CW.5-Girish, PW.6/CW.6-Bullamma and PW.7/CW.7- Shobhamma.
d. On 31.07.2010, he recorded the statement of accused No.1 Eshwara, accused No.3 Lakkappa, accused No.6 Jetti Basavarajappa, accused No.7 Kadlenni Basappa, accused No.8 Veerappa, accused No.9 Manjappa, accused No.10- Basavaraj and accused No.11 Nagarajappa who were released on bail on 04.09.2010. He got the sketch prepared by the Engineer, PWD, as per Ex.P.4 and Ex.P.5.
e. On 09.09.2010, he got obtained the Wound Certificate of PW.2/CW.2-Kantesh, PW.4/CW.3-Kariyappa, PW.3/CW.4-Rudrappa, PW.5/CW.5-Girish and PW.6/CW.6-Bullamma.
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CRL.A No. 100101 of 2016 On 13.10.2020, he obtained the wound certificate of PW.7/CW.7-Shobhamma and on the same day, he submitted the charge-sheet. He identifies the said certificate as Exs.P.6 to
11. f. In the course of cross-examination, on enquiry as to whether second place of crime was in front of the house of deceased accused No.2- Kamaraj, he states that he does not remember. He states that he is aware that PW.8/CW.8- Ashok and CW.10-Virupakshappa are relatives which he came to know when the panchnama was being prepared. He states that there are houses around the house of the deceased. He states that he did not seize the register of the milk dairy. He has denied that he has not visited the scene of crime or that PW.8/CW.8- Ashok had shown him a different spot. There are various suggestions made which have been
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CRL.A No. 100101 of 2016 denied by PW.10/CW.15-Lingappa. Several questions have been asked to him as regards the discrepancy in the evidence of PW.2/CW.2- Kantesh, PW.3/CW.4-Rudrappa, PW.4/CW.3- Kariyappa and PW.5/CW.5-Girish inasmuch as an enquiry was made as regards whether PW.2/CW.2-Kantesh had informed him that they went to grain Threshing yard at 10 p.m. He has further stated that PW.2/CW.2-Kantesh had never informed that accused No.9- Manjappa had kicked his testicles. These are pertaining to some of the overt acts on the part of the accused in causing the injury to the complainant and PW.2/CW.2-Kantesh, PW.3/CW.4-Rudrappa, PW.4/CW.3-Kariyappa, PW.5/CW.5-Girish, PW.6/CW.6-Bullamma and PW.7/CW.7-Shobhamma. In the larger scheme of things, these are not very material.
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CRL.A No. 100101 of 2016
30. The above being the evidence, Ex.P.1 is the complaint filed on 26.07.2010 wherein it is alleged that on 25.07.2010 at 6 p.m., there was an altercation in front of dairy of accused No.1-Eshwar and it is further alleged that at 10:30 p.m. the incident occurred during which PW.8/CW.8-Ashok came and pacified the fight. It is stated that as there is no doctor available in the village, they were taken to Haveri district hospital. The said complaint was filed on 26.07.2010 at 4:45 a.m. at the outpost which came to be sent to Hirehadagali police station on 26.07.2010 at 6.30 a.m. through PC No.338. Exs.P.2 and 3 are the spot panchnamas, Exs.P.4 and 5 are sketches of the scene of crime, Exs.P.6 to 11 are the wound certificates, Ex.P.12 is the FIR, Exs.P.13 and 14 are also sketches. Ex.D.1 is the portion of statement of PW.2/CW.2-Kantesh, Ex.D.2 is portion of the statement of PW.2/CW.2-Kantesh, Ex.D.3 is portion of the statement of PW.4/CW.3-
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CRL.A No. 100101 of 2016 Kariyappa and Ex.D.4 is the portion of statement of PW.8/CW.8-Ashok.
31. That being the evidence on record, the said evidence needs to be examined in order to ascertain whether the guilt of the accused has been brought home.
32. Before we advert to the evidence on record, Cr.No.41/2010 and Cr.No.42/2010 being complaint and counter complaint, it would be required first to determine the procedure to be followed by this Court.
33. In the year 1954, the Madras High Court while dealing with the case in THOTA RAMAKRISHNAYYA AND OTHERS VS. THE STATE reported in AIR 1954 MADRAS 442 has opined on how a complaint and counter complaint have to be dealt with. The relevant portion being the last portion at paragraph 29 and paragraphs 30, 31, 32,
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CRL.A No. 100101 of 2016 34 and 36, which are reproduced hereunder for easy reference:
"29. Then we come to the very important case decided by Reilly and Pandalai JJ. - 'In re Jaggu Naidu 1932-5 Mad Cri. C. 235 (Z 10)', following extracts may be usefully made as they have a material bearing on the present case:
That two cases really 'Counter' to each other in the sense that they put forward two versions of the same incident, one of which must be false, should be sent to the Sessions Court at or about the same time for trial ought to be extremely rare. Such counter cases sometimes come before a Magistrate though it should be impossible that both should be prosecuted by any public authority. It sometimes happens however that in cases of rioting in which two groups of persons are concerned the Police put in a charge-sheet against one party and members of that party prefer a private complaint against their opponents. And counter cases of that sort may arise in connection with other offences. It is generally the duty of one Magistrate to hear both cases and though the Magistrate can never legally use in one case evidence which is on record only in the other case, it is sometime convenient that he should near all the evidence in both cases before he pronounces judgment in either in order that if any relevant evidence comes to his notice in one case which would be of use in the other he may have it brought on record in the other case also.
The Magistrate must be trusted not to allow himself to be confused between the two cases nor to base his judgment in either on evidence not legally admitted in that case. And it has sometimes been said that when the Magistrate finds it necessary to commit the accused in one of such cases to the Sessions Court for trial it. is desirable that he should commit the accused in the counter case also instead of disposing of it himself.
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There may be cases in which that procedure is appropriate, though a Magistrate can never be justified in exposing any person to the anxiety and expense of a trial in the Sessions court, merely because he is the complainant or one of the prosecution party in a counter case in which the accused is committed to session for trial.
"Preliminary inquiries under Chapter 18 Criminal Procedure Code, are intended to be a real protection to parties from unnecessary harassment by committal to the Sessions Court as well as a means of preventing waste of public time and money.
But occasionally two counter cases relating to the same incident, one of which must be false, are sent to the Sessions Court for trial either by the same Magistrate or by different Magistrates. According to the procedure which it has been understood has been prescribed by Jackson , J. in
-'AIR 1930 Mad 190 (Z2)', though I must repeat that I have greatest difficulty in believing that he really meant this-both cases must be heard in full by the same Judge and assessors or by the same Judge and Jury before the assessors express any opinion or the jury gives any verdict in either.
Let us see how this affects the Public Prosecutor and it must be remembered that in every trial in Sessions Court the prosecution must be conducted by a public Prosecutor. Let us suppose that the two cases relate to the murder of 'X', in the one case Ramaswami Goundan being the accused, in the other Palaniyappa Naidu, If It be thought that this is an extreme instance to take, I can only say that I have known of two such counter cases of murder and have been invited to use the revisional powers of this Court to order that the man charged by the police with murder and a man charged by the accused person with the murder of the same victim be tried at a combined trial in the Sessions Court in accordance with the procedure supposed to have been prescribed by Jackson J.
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How is the Public Prosecutor to conduct him-.self in such circumstances? According to -'AIR 1930 Mad 190 (Z2)', it is not proper for him to suggest to the Sessions Judge that the case which appears to him to be true should be tried first; the two cases must be tried first; the two cases must be heard one after the other in a combined trial before the assessors express any opinion or the Jury gives any verdict. Is the Public Prosecutor to conduct each case wholeheartedly as if against a man whom he has reason to believe to be guilty? Is he to prosecute the case against Bamaswami Goundan in the ordinary way and then open the case against Palaniappa Naidu in some such way as this:
'For the last two days I have been endeavouring to prove to you that this murder was committed by Bamaswami Goundan, and I trust that of that I have completely satisfied you. It is now my duty to demonstrate that the story is entirely false and that the murderer was not Ramasami Goundan but Palainappa Naidu. And of that too I trust that I shall convince you to your entire satisfaction.' Or is he to adopt the attitude that he knows who was the murderer of the victim but that he is not going to let the Judge or the assessors or the Jury into the secret; they must find it out for themselves? Or, is he to represent himself as entirely in the dark about the whole matter? Is he to say something of this sort:
That a murder was committed, I think I shall have no difficulty in convincing you. The question is whether that murder was committed by Ramaswarni Goundan or Palaniappa Naidu. All the resources of the Crown have been devoted to the investigation of that very serious question. But I regret to have to tell you that after months of patient labour we are still in the dark. We have no idea whatever which was the murderer. So we have decided to lay the whole facts before you and leave you to make your choice.
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Whichever method he adopts, it is likely that the proceedings will be reduced to a disgraceful and wicked farce. The Public Prosecutor will be required to run with the hare and hunt with the hounds, to appear alternatively in the same proceedings for the prosecution and for the defence and to be in the counsels of both, to ride two horses at once in a scandalous competition. If those were the duties of the Public Prosecutor, no honourable member of the profession would demean himself by accepting the office. Nor could these difficulties really be escaped by appointing two Public Prosecutors for the occasion one to conduct the prosecution of each man. Would it be less scandalous that two counsel should appear for the Crown in the same proceedings, each making out that the other's case was false?
In this country every prosecution in a Sessions Court must be conducted by a Public Prosecutor as a representative of the Crown; and those who represent the Crown betray their trust if they prosecute a case which they have not reason to believe to be true. The great majority of cases which come before a Sessions Court for trial have been investigated by the Police. The object of that investigation is not to collect evidence to make out a case but to sift true cases from false. In preliminary enquiries made by a Magistrate under Chapter 18 Criminal Procedure Code, again the case is to be tested and the evidence sifted and only where there is a good 'prima facie' case against the accused, the accused should be committed to the Sessions Court for trial. But every case in which a person is committed for trial to the Sessions Court is riot to be tried. The Public Prosecutor is not a machine or a slave to prosecute every case in which there has been a committal. To the Public Prosecutor is entrusted discretion to withdraw from the prosecution with the consent of the Court and his withdrawal puts an end to the case. The law gives him a real discretion in the matter. It may often be proper for him to consult the District Magistrate or other authorities before exercising that discretion. But in
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the eye of the law and of the Court the discretion is his alone subject to the consent of the Court.
The Public Prosecutor holds a very honourable and responsible office. To suggest that if unfortunately two counter-cases, one of which must be false, are sent to the Sessions Court, he cannot properly indicate to the Court which case he has reason to believe to be true and undertake the prosecution of that case first, is to my mind quite unreasonable. On the contrary it is his right and his duty to select the case which appears to him to be true. It is possible - indeed it has sometimes happened - that, after the first case has failed, the Public Prosecutor may have reason to change his mind and to believe the second case to be true either on account of something which has come to light later or something which has been disclosed in the course of the first trial. In such circumstances he may honestly and honourably prosecute the second case. But how can he ever be required to jumble up the false and the true by prosecuting both cases at once? There is not a word in the Code to suggest a procedure so likely to bring courts of justice into contempt.
And the Public Prosecutor is not the only person to be considered. Are the assessors or the jury to be confused by the Crown putting before them two contradictory cases? What are they to think of that Public Prosecutor arguing for the prosecution to- day and for the defence tomorrow, taking up inconsistent positions, demolishing his own arguments, examining witnesses of truth and cross-examining them tomorrow to show that they are liars? Can Jurors or assessors who have to watch such a performance be expected to take their duties seriously? It is probable that self- respecting Jurors or assessors would show their disgust at such proceedings by refusing to find any one guilty in either case. And I think is a simple test which will show that in cases tried by Jury the postponement of the verdict of the Jury in the first of two cases tried in succession until they have heard the evidence in the second case, whether the two cases are counter-cases in the sense that
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one must be false or are merely connected cases, is unquestionably illegal.
If the Judge at the end of the first case does not take the verdict of the Jury but requires them to listen to the evidence in the Second case before they give any verdict what is he inviting them to do? He is inviting them to take the evidence in the second case into consideration before they give their verdict in the first case. There can be no other object in requiring them to hear the evidence in the second case before they give a verdict in the first. The Judge who does that is inviting the Jury to break their oath which they have taken in the first case that they will give a true verdict according to the evidence in that case. Assessors are not bound by any oath; but it is clear that it is the intention of the Code that they shall give their opinions as required by Section 309, at the conclusion of each case on the evidence in that alone.
And what of the accused persons, who are in turn in the dock? The Public Prosecutor is their champion today and their opponent tomorrow. How can they be open with him when he is on their side without exposing to him the weak points in their armour, through which he can wound them, when he in turn attacks them? And, when all the evidence in the first case has been given, the accused in that case are entitled to know that they have nothing more to meet. But how can they prevent new evidence being elicited in the second case to fill gaps in the case against them? Worse still, if they are made, as they must often be made witnesses for the prosecution in the second case, they will be exposed to cross- examination. In this country no accused person, can be cross-examined. Where the prosecution evidence has been given, the Judge must question the accused for the purpose of enabling him to explain the evidence against him. But the Judge must be very careful to "avoid any question in the nature of cross-examination; he must never lead the accused to convict himself out of his own
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mouth; he must never elicit anything to discredit the accused, he must never trip him up. But, when the accused is produced as a prosecution witness in the counter-case, all these things will be within the province and duty of cross-examining counsel.
An accused person cannot, be punished for any false answer which he gives while in the clock; but the moment he is transferred to the witness-box as a prosecution witness he will be liable to punishment for perjury. Even in England an accused person cannot be compelled to give evidence against his will. In the strange jumble of trials we are contemplating the accused will have no choice but go into the witness-box in his turn, when the Public Prosecutor requires him to do so, and in many instances it will be the duty of the Public Prosecutor to put him there.
In other words, in these cases and counter cases, five parties are placed in an embarrassing position as evident from the liberal extracts which I have made above. Firstly, we have to consider the position of the investigating Police who have put forward before court two diametrically opposite versions of the same transactions as truthful versions. Secondly, we have the Public Prosecutor who has to conduct both the cases running with the hare and hunting with the hounds and thereby bringing his own honourable office into disrepute. Thirdly, the assessors and the Jurors if the same assessors and Jurors are empanelled for both. Fourthly, the embarrassment of the Judge who has to hear both the versions and to allow himself to come to independent conclusion in both cases without the evidence in one prejudicing his mind in regard to the other. Fifthly, we have the accused who has to double his role as a prosecution witness in the one and an accused in the other.
30. So far as the investigating Police are concerned, the solution is clear viz., the answer given by Reilly and Pandalai, JJ. in - '1932-5 Mad Cr C 235 (Z10) and by Reilly, O. J. and Nageswara Iyer J. in
- '18 Mys LJ 229 (Z). It is unthinkable that any
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self-respecting police would put forward two diametrically opposed versions before court taking a completely abbreviated view of their own functions and treating so disrespectfully courts of law. It is enough to point out that such a contingency would be undreamt of in an English Criminal Court from which system of criminal jurisprudence we borrow ours.
31. Turning to the position of the Public Prosecutor, the solution in ordinary practice has always been to appoint separate Public Prosecutors for the conduct of case and counter-case. I have myself as sessions Judge for nearly twenty years tried important cases and counter with different Prosecutors.
32. Turning to the embarrassment caused to the Jurors and assessors and the Judge the solution has been found in the Full Bench decision of - 'Mounagurusami Naicker In re' AIR 1933 Mad 36T (2) (Z11), to which reference will be made presently.
34. In - 'AIR 1933 Mad 367 (2) (Z11), decided by Sir Owen Beasley C. J. and Stone and Burn, JJ., it was laid down after reviewing the previous decisions as follows:
Where a case and counter-case are tried by a Sessions Judge no hard and fast rule can be laid down in regard to the procedure to be adopted. The trials must be separate, i.e., before different assessors and different judgments delivered. The conclusions in each case must be founded on and only on the evidence in each case.
It has to be noted that this Full Bench had the advantage of the 'amici curici' arguments of Messrs Nugent Grant and L. H. Bewes (Public Prosecutor) with unrivalled experience.
36. The principles which can be evolved from these decisions can be compendiously set out as follows.
If complaints of the offence of rioting be given by both the parties during investigation, the
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CRL.A No. 100101 of 2016 investigating officer should enquire into both of them and adopt one or the other of the two sources, viz., to charge the case where the accused were the aggressors or to refer both the cases if he should find them untrue in material particulars. If he finds that the choice of either course is difficult, he should seek the opinion of the Public Prosecutor of the District and act accordingly. A Magistrate before whom such a case is charged by the Police and a private complaint from the party whose case was referred, should hear both the cases together and commit both the cases to the Sessions even if only one of them is exclusively triable by a court of Session. If, however, the Magistrate feels that there is no acceptable evidence in both the cases, he should discharge the accused. If, however, in one case a more serious offence like Section 148 I. P. C. is made out then in the interest of justice, both the cases should be sent to the First Class Magistrate for disposal, and he may commit both the cases, or discharge the committal case and himself try the other or if he finds the committal case after recording evidence one triable by himself proceed to enquire into both and convict or discharge or acquit, the accused in both the cases. The Sessions Judge should if both the cases had been committed hear them in succession with different assessors and come to independent conclusions keeping as far as possible the evidence in the one case distinct from the other. If in respect of an occurrence, there is a variation in time, or place, or other circumstances warranting a reasonable inference that they are not parts of the same transaction, but that the earlier occurrence may even be a motive for the later one, then the two cases may be tried separately and the aforesaid rules of procedure need not be applied. If in respect of a single incident, two different versions are offered, and they are substantially divergent from one another, then it is the duty of the investigating officer to find out which version is true and charge that case only leaving the other version to be prosecuted if so advised after a referred charge-sheet being served
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CRL.A No. 100101 of 2016 on the complainant and in such cases also the rules for enquiry and trial as in case and counter should be followed.
If in trials not exclusively triable by a Court of Session, a Magistrate has to hear and dispose of the cases himself and he frames charges in one case and does not frame any charges at all in the other, it cannot be considered that the Magistrate had made up his mind in the other case by not framing the charges and some kind of reasonable apprehension cannot be said to be created in the minds of the accused in respect of the other case where charges had been framed and transfer asked for on that ground. The fact that in a similar case the Magistrate came to a particular conclusion on the evidence in that case is no ground for a transfer : - 'Rajani Kanta v. Emperor', 36 Cal 904 (Z21). Interest or bias should not be inferred from the opinions formed by the Magistrates on evidence judicially recorded - 'Ghulamali v. Emperor' AIR 1935 Sind 72 (Z22) and -'Walidad v. Nizam-ud-din' AIR 1929 Lah 43 (Z23).
The principle maintained universally by all High Courts is that the accused has no reasonable ground for apprehension that he will not have a fair trial merely because the Judge in an ence in that case as to which of the two versions ancillary proceeding arising out of a counter-case has expressed certain views upon the evid-is correct. The basis of the ruling is that Judges are presumed to be upright men who will approach each case from the point of view of that case alone and not permit their minds to be affected in any way by anything that has gone before that case. It cannot be believed that Judges are so easily prejudiced that because one incidental part of the case before them has been decided in a previous case, they will shut their eyes entirely to anything that may be alleged in favour of the accused in a subsequent trial : - 'Amrit Mandal v. Emperor' AIR 1916 Pat 33 (2) (Z24)."
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34. The Kerala High Court while dealing with a similar kind of matter in AUGUSTINE AND OTHERS VS. THE STATE reported in 1982 CRL. L.J. 1557, more particularly, at paragraphs 4 and 12 has held as under:
"4. Before going into the propriety of the procedure canvassed by the appellants, it is desirable to deal with the connotation of the term "case and counter-case' which is very often used during criminal trials. The term in its general import stands for cases registered on the basis of rival versions of the same incident. Such cases need not always be registered on the basis of police reports. In respect of a particular occurrence, the police on getting information may register a case against a certain individual, say a person by name A. It may so happen that A himself sustained some injuries. A might approach the police and launch a complaint regarding his version of the occurrence and how he sustained the injuries. The two versions may be conflicting Still the police may register a case and investigate it along with the main case already registered. After questioning witnesses the investigating officer may find that the version given by A is false. What the officer generally does is to file a charge-sheet in the main case and a refer report in the case registered on the basis of the statement of A. A would naturally feel aggrieved by the conduct of the police.
It may also happen that even though A gave a statement the police did not register a case based on his statement. In both the above contingencies A is not left without his remedy. He may present a complaint before Court setting out how, according to him, the occurrence took place and he sustained the injuries and the Magistrate may take
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the complaint to file and proceed with it. The main case based on the police report and that based on the complaint give conflicting versions of the same incident and are therefore described as "case and counter-case". In one the prosecuting secuting agency will be the State while in the other it is the private complainant. The decision, Achuthan v. Bappu 1961 Ker LT 412, represents the above type. There can also be case and counter-case where both the prosecuting agencies are private individuals. Thus A may sustain injuries at the hands of B and in the course of the same transaction B may sustain injuries at the hands of A. Both A and B would be having their own versions of the occurrence which would be conflicting with each other. In such cases if A and B prefer complaints against each other, those cases also come under the purview of 'case and counter-case'.
It is now well recognised that cases and counter- cases of the above type should be tried and disposed of by the same Court, trial in one being followed by the other and the judgment in both being pronounced in quick succession. The underlying principle is that since the cases relate to the same occurrence and the witnesses in one may figure as accused in the other case and they may give conflicting versions, for grasping the real facts and for a proper appreciation of the evidence, it is always desirable that the two cases are tried by the same Court. The case law leading to the above practice has been discussed in detail by Ramaswami J., in Ramakrishnayya v. State . It may not be necessary to go into more details regarding the procedure to be followed in cases where the prosecuting agencies are different in the case and the counter-case as that may not be of much help in resolving the present controversy.
In riot cases where there are factions the police on investigation may find that each of the rival parties overstepped the bounds of law and committed offences of independent nature. In such cases there is nothing wrong in filing separate charge-sheets against each because one
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would not necessarily be false if the other were true. We are not now concerned with the procedure to be followed in such cases also. In the case and counter-case of the type we are concerned the rival versions put forward may not stand together and it the main case is true, the counter-case would necessarily be false. The question that is posed is whether in such case it is incumbent on the part of the police to see that charge-sheets are filed in both in spite of the fact that as a result of investigation they form the opinion that one of the versions is false.
12. In the light of the discussion we hold that if in respect of a transaction relating to an offence a case and a counter-case happen to be registered by the police, based on conflicting versions given by rival persons, it is not incumbent on the part of the investigating officer to file separate charge- sheets in both the cases. The investigating officer is expected to file a charge-sheet only in the case where, it appears to him as a result of investigation that an offence has been committed. The observation to the contrary contained in Thami v. State of Kerala 1965 Ker LT 697, is not legally sustainable and will therefore stand overruled.
35. A division bench of this Court had an occasion to extensively deal with the said subject matter in THE STATE OF KARNATAKA VS. BALAPPA BHAU VADAGAVE AND OTHERS reported in 1984 (2) KLJ 1 wherein at paragraphs 70, 72, 73, 74 and 75 it has been held as under:
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"70. A careful reading of all these rulings would reveal that it is the duty of the police while investigating a case and a counter-case to investigate both the cases as provided under Chapter XII of the Code and after completing the investigation assess the material collected to find out whether on the material collected, there is a case to place the accused before a Magistrate for trial and if so, take the necessary steps for the same, by filing a charge-sheet under Section 173 Cr. P.C. There may be a case where it may happen that each party has committed the offence and that each party has over-stepped the bounds of law and if the investigating officer on the assessment of the evidence reach such a conclusion, it is perfectly open to him to place charge-sheet in both the cases as there would be nothing incompatible in them. But on the other hand, if the investigation reveals that if one case is true, the other must necessarily be false, then the police should file charge-sheet in the case in which the investigation disclosed a case to place the accused before the Magistrate for trial and refer the other case to leave the aggrieved party to pursue the matter by him. Judicial verdict is consistent in deprecating the conduct of the police in placing charge sheets in both the case and the counter-case, which are contradictory, in the sense, that if one is true, the other must necessarily be false, solely with a view to shirk their responsibility, being afraid of the possibility or probability of imputing partiality and for evading the same, filing charge-sheets in both the cases to appease both the parties leaving the matter to be decided by the court. In none of these rulings, investigation of the case and the counter-case by different officers is either indicated or suggested.
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72. As regards the counter case, obviously arising out of the complaint Ex. P. 29 of Al, there is a mere reference by the trial court in the course of the judgment while dealing with the injuries sustained by A1 to A3 that the defence itself had explained the injuries sustained by the accused as it had to, so explain because of the peculiar defence taken in the counter-case, obviously by the prosecution witnesses in this case who were the accused in the counter-case. Thus it would appear that the case and the counter case arising out of the same incident in the instant case were investigated by two officers, independent of each other, each of whom after completing the investigation placed the charge- sheet in the respective cases, obviously with the dressed-up investigation, without verifying the truth or other-wise of the two versions of the same incident given by the deceased - party as well as the accused party and collected material in each of the cases in such a way to make out a case against the accused in each case so as to place both of them before the court for trial as if the case and the counter-case are two independent crimes although arising out of the same incident.
73. The reason for conducting investigation in this fashion though not found in the Code of Criminal procedure, was founded upon a Law Section Circular No. 3989 dated 7-5-1977 issued from the office of the Inspector General of Police, Karnataka State. The subject matter of the law circular reads :
" Rioting case - case and counter case - investigation and prosecutor separate I.Os. and prosecutors-"
In the introductory portion of the circular instruction, having stated that the propriety of the same investigating officer investigating both the case and the counter-case and filing charge- sheets against both the groups and the same prosecutor conducting both the cases has been considered by the High Court of Karnataka in
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CRL.A No. 100101 of 2016 Gooti Sanniah's case (1976 (1) Kar. L.J. 10) and having excerpted a portion of the judgment from that decision and having examined the question whether there should be separate investigating officer and separate prosecutor for the case and the counter-case, the Inspector General of Police issued instructions to the investigating officers as to the procedure to be followed in investigating the case and counter-case and the steps to be taken for deputing separate prosecutor to conduct the case and the counter-case where charge-sheets have been laid in both the cases which are as under :
4) Whenever a case and a counter-case of rioting is registered in a Police-Station, the Investigating Officer/S.H.O. should immediately send a report to the Circle Inspector, A copy of this report should also be sent to the S.D.P.O.
5) On receipt of the report from the S.H.O. the Circle Inspector should take up investigation of the counter-case and complete the investigation and file the final report.
6) If the Circle Inspector is not available either due to his absence on leave or for any other reason, the S.D.P.O, should immediately take up the investigation of the counter-case, continue the investigation and file the final report.
7) The S.D.P.O. Should send a special report regarding the registration and investigation of the case and counter-case to the Superintendent of Police of the District.
8) When charge-sheets have been filed in both the case and counter case, the fact should be reported by the C.I. SDPO to the Superintendent of Police of the District, requesting for making arrangements for deputing a separate prosecutor to conduct the counter-case.
9) The Superintendent of Police in turn should take up the matter with the Dy. Director of Prosecution of the Range and ensure that a
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separate prosecutor is deputed for conducting the counter-case.
10) These instructions should be strictly adhered to."
74. The question is whether this circular which was obviously based on the ruling of this court in Gooti Sannaiah's case (1976 (1) Kar. L. J. 10) is based on the correct understanding of the legal position enunciated in the said decision. We have already referred to the legal position enunciated in the said decision and we are unable to find any support for the instructions issued to the police for conducting investigation by different officers in the case and the counter-case arising out of the same incident and placing final report after completing the investigation independent of each other by following the procedure contained in the circular instructions. In Gooti Sannaiah's case (1976 (1) Kar. L. J.
10), all that was emphasized by a Bench of this Court was the undesirability of placing charge- sheets in both the case and the counter-case by the same police of which, if one is true, the other is essentially false and prosecuting such contradictory cases one after another by the same prosecutor. This legal position as we found earlier, was enunciated as early as by the erstwhile High Court of Mysore in Gundi Giriyappa's case (18 Mys. L. J. 229). The same view was taken by the Madras High Court in Ramakrishnaiah's case . The ratio of the Full Bench decision of the Kerala High Court in Augustine's case (1982 Cr. L. J, 1557) also falls in line with the ratio of the above decisions. Neither we find any support for the proposition that separate investigating officers should investigate the case and the counter-case arising out of the same incident in any of the decided case, much less in the decision of this Court in Gooti Sannaiah's case (1976 (1) Kar. L. J. 10), nor under any of the provisions of the Code. There cannot be any two opinions that the case and the counter case arising out of the same incident though registered in separate crime
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CRL.A No. 100101 of 2016 numbers, are not two independent cases but two versions of the same incident. For the purpose of investigation, both the complaint and the counter-complaint are registered separately but the truth or otherwise of the complaint and the counter-complaint shall have to be verified by the same investigating officer, investigating both the crimes impartially and diligently and after completing the investigation, assess the material collected in both the crimes, form an opinion as to which of the persons in the complaint or the counter-complaint, as the case may be, have committed the offence and place the charge-sheet against such persons and refer the case in which he found no offence is made out, so that the concerned party may prosecute his complaint in a court of law. However, we may emphasize that in appropriate cases, though such cases seldom occur, the investigating officer may file charge- sheets against both the parties as illustrated in Gundi Giriyappa's case (18 Mys. L.J. 229) to which a reference has been made earlier.
75. It is unfortunate that neither the Directorate of Prosecution which is in-charge of the conduct of the prosecution in the subordinate courts nor the State Public Prosecutor, who is representing the State in Criminal Cases at the High Court level, has so far perceived in these long seven years and taken any step to set right the wholly wrong and erroneous mode of conducting investigation in case and counter-case arising out of the same incident by different investigating officers, independent of each other and filing reports under Section 173 of the Code based upon the Law Section Circular No. 3989 dated 7-5-1977 referred supra for which we do not find any sanction or approval by any of the provisions of the code. We feel wonder how many rioting cases involving case and counter- case ended in miscarriage of justice due to this mode of investigation by the police. We look askance at the slackness on the part of the aforesaid agencies and also the wisdom of the
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CRL.A No. 100101 of 2016 authority responsible for the Law Circular which introduced the novel investigation in this State."
36. The Hon'ble Apex Court in NATHI LAL VS. STATE OF U.P. reported in 1990 SCC (SUPP) 145 at paragraph 2 has held as under:
"2. We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case, The evidence recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other."
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37. The Hon'ble Apex Court once again in STATE OF M.P. VS. MISHRILAL (DEAD) AND OTHERS reported in AIR 2003 SC 4089 at paragraphs 7 and 8 has held as under:
7. Undisputedly, accused Mishrilal lodged the report to the police vide Ex.D-8 over the same incident happened on 5.3.1987, in which he had clearly stated the injuries were sustained by him and his son Madhusudan at the hands of prosecution party. It is also not disputed that on the strength of the complaint lodged by Mishriulal, investigation was also carried out and challan was filed namely crime case No.52/87 under Sections 147, 148, 149 and 324 IPC against the prosecution party which is pending for disposal before the learned Judicial Magistrate First Class. In the said challan, the prosecution party is stated to be an aggressor. This Court in Nathilal Vs. State of U.P. 1990 (Supp.) SCC 145, pointed out the procedure to be followed by the Trial Court in the event of cross cases. It was observed thus:-
"We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the
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judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other."
8. In the instant case, it is undisputed, that the investigating officer submitted the challan on the basis of the complaint lodged by the accused Mishrilal in respect of the same incident. It would have been just fair and proper to decide both the cases together by the same court in view of the guidelines devised by this Court in Nathilal's case (supra). The cross- cases should be tried together by the same court irrespective of the nature of the offence involved. The rational behind this is to avoid the conflicting judgments over the same incident because if cross cases are allowed to be tried by two courts separately there is likelihood of conflicting judgments. In the instant case, the investigating officer submitted the challan against both the parties. Both the complaints cannot be said to be right. Either of them must be false. In such a situation, legal obligation is cast upon the investigating officer to make an endeavour to find out the truth and to cull out the truth from the falsehood. Unfortunately, the investigating officer has failed to discharge the obligation, resulting in grave miscarriage of justice."
38. A Full Bench of this Court in STATE OF KARNATAKA BY CIRCLE INSPECTOR OF POLICE VS.
HOSAKERI NINGAPPA AND ANOTHER reported in ILR 2012 KAR 509 has formulated the following three questions:
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(1) Whether the proceedings are vitiated if the case and counter case are not tried as held by the Hon'ble Supreme Court in Nathi Lal vs. State of U.P. reported in 1990 SCC (Cri) 638 and Sudhir and others vs. State of M.P. reported in 2001 SCC (Cri) 387?
(2) Whether the evidence recorded in one case can be looked into in the other case? If so, when and to what extent?
(3) If the Trial Court disposes of case and counter case on different dates acquitting the accused therein and no appeal is preferred in one of the cases and appeal Trish is preferred in the case decided later A. whether the proceedings in the later case are vitiated?
39. The Full Bench of this Court has held as under:
16. To sum up, the procedure to be adopted in case and counter case is that the investigation should be conducted by the same Investigating Officer and the prosecution should be conducted by two different Public Prosecutors. The trial should be conducted by the same Court. After recording the evidence 11.00 and after hearing the arguments, the judgment should be reserved in one case and thereafter the evidence should be recorded and the arguments should be heard in the other case. It is needless to observe that the arguments in both the matters shall be heard by the same Learned Judge. The judgments should be pronounced by the same Judge simultaneously i.e., one after the other.
In deciding each case, the Trial Judge can only rely on the evidence recorded in that particular case and the evidence recorded in the cross case (or counter case) cannot be looked into. The
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CRL.A No. 100101 of 2016 Judge shall not be influenced by the evidence or arguments in the cross case. However, if the evidence recorded in one case is brought on record in another case in accordance with the procedure known to law, then, such evidence which is legally brought on record can be looked into. Except in such situation, the evidence recorded in one case cannot be looked into in another case.
18. In view of the foregoing reasons, we answer the points referred to us as under:
(a) If the case and counter case are not tried simultaneously as held the Supreme Court in the case of Nathi Lal vs. State U.P. (Supra) and in the case Sudhir and others vs. State of M.P. (Supra) the proceedings ipso facto do not get vitiated. But, where the irregular procedure adopted the Trial Court caused prejudice to the accused and has occasioned failure justice, the proceeding and the trial vitiates. Otherwise, the proceedings are protected under Section 465 of the Code.
(b) The evidence recorded in one case cannot be looked into in the other case. The Trial Judge can only rely upon the evidence recorded in that particular case and the evidence recorded in the cross case cannot be looked into. Each case must be decided on the basis of the evidence which has been placed on record in that particular case. However, if the evidence recorded in one case is brought on record in accordance with procedure known to law in the other case, then, such evidence which is legally brought on record can be looked into. Otherwise, the evidence recorded in one case cannot be looked into in the other case.
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(c) If the Trial Court disposes of the case and counter case on different dates acquitting the accused therein and no appeal is preferred in one of the cases and the appeal is preferred in the case decided later, the proceedings in the later case do not automatically get vitiated. Each case has to be judged on its own merits. Unless prejudice is shown to have been caused to the accused, the proceedings in the later case do not get vitiated.
The reference is answered accordingly."
40. The Hon'ble Apex Court in MITTULAL AND ANOTHER VS. THE STATE OF M.P. reported in AIR 1975 SC 149 at paragraph 4 has held as under:
"4. It is apparent from a bare reading of the judgment of the High Court that it suffers from a serious infirmity and it is impossible to sustain it. The High Court has based its conclusion not only on the evidence recorded in the case against the appellants and the four other accused but also taken into account the evidence recorded in the cross case against Ganpat, Rajdhar and others. This is what the High Court has stated in so many terms in paragraph 7 of the judgment :
The two cases Cr.A.No. 188 and Cr. A. 202 of 1968 have to be read together and then alone the real position can be understood. The witnesses in one case are undoubtedly accused in the other It is by going through the evidence in both the cases that we can come to the real story The Nandwanshis claim that the fight took place in the field belonging to them and, therefore, they had a right of private defence, whereas the other party similarly claim that the fight took place in their field and they had a right of private defence. Curiously enough both claim
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that the origin of the trouble is the grazing of the cattle If we read with both the cases together with the statement of the accused in one case and the version of the witnesses of the prosecution witnesses in the other along with the statement of the accused and the version of the prosecution witnesses in the other we can come to the true story. Independently considered a particular case, it creates some confusion. If both the cases are read together there leaves no room for doubt that the incident happened in the following manner.... After going through the evidence of both the cases I have come to the conclusion that the conviction in both the case are in order.
This was clearly impermissible to the High Court. It is difficulty to comprehend as to how the High Court could decide the appeal before it by taking into accounts evidence recorded in another case, even though it might be what is loosely called a cross case. It is elementary that etch c se must be decided on the evidence recorded in it and evidence recorded in another case cannot be taken into account in arriving at the decision Even in civil cases this cannot be done unless the parties are agreed that the evidence in one case may be treated as evidence in the other. Much more so in criminal cases would this be impermissible it is doubtful whether the evidence in one criminal case can be treated as evidence in the other, even with the consent of the accused. But here there was clearly no consent of the appellants to treat the evidence recorded in the cross case against Ganpat and Rajdhar as evidence in the case against them The High Court was, therefore, clearly in error in taking into consideration the evidence recorded in the cross-case against Ganpat and Rajdhar. The High Court ought to have decided the appeal before it only on the basis of the evidence recorded in the present case and ought not to have allowed itself to be influenced by the evidence recorded in the cross-case against Ganpat and Rajdar. It is regrettable that the High Court should have fallen into such an obvious error. The judgment
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of the High Court must, therefore, be set aside and we must proceed to consider whether, on the evidence recorded in the present case without locking into the evidence recorded in other cross-case the conviction and sentence recorded against the appellants can be sustained."
41. Though all the aforesaid decisions are relating to the procedure to be followed by the trial Court, the decision of the Hon'ble Apex Court MITTULAL AND ANOTHER VS. THE STATE OF M.P. reported in AIR 1975 SC 149 would be of some assistance to us wherein the Hon'ble Apex Court has held that the High Court could not decide an appeal before it by taking into account evidence recorded in another case even though it might be a cross-case or a counter case.
42. Thus, from the above, it is clear that even when appeals are filed, before the High Court, one challenging the conviction in the case, the other challenging the conviction in a counter case or one challenging the acquittal in the case and conviction in the counter case or vice versa, the High Court could not look into the evidence of the counter
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CRL.A No. 100101 of 2016 case while deciding the case and cannot look into the evidence in the case while deciding the counter case.
43. The above would also imply that there are two separate judgments which are required to be passed and both the appeals cannot be clubbed together and a single judgment cannot be passed after hearing the counsels. Thus, the procedure which should be required to be followed by the High Court being more or less as that to be followed by the trial Court can be summed up as under.
44. Whenever two appeals are before the High Court arising out of a case and counter case a. It would also be required that in each of the appeals a different prosecutor appears on behalf of the State, b. After arguments are heard in one appeal the judgment is required to be reserved,
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CRL.A No. 100101 of 2016 c. After argument is heard in the second appeal the judgment is to be reserved, d. Two separate judgments are required to be passed in each of the appeals, e. While passing judgments in each of the appeals, the High Court cannot look into the evidence led or be influenced by the arguments advanced in the other appeal.
f. Suffice it to say that each appeal has to be decided on the basis of the evidence and the law applicable to that particular appeal.
45. The above aspects being laid to rest, we would be required to pass two separate judgments in both the appeals. Both the appeals were heard one after the other and judgment reserved.
46. The evidence on record indicates that on 25.07.2010 at about 6 p.m., there was an altercation in front of the dairy in the village when PW.2/CW.2-Kantesh
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CRL.A No. 100101 of 2016 had gone to deliver milk, accused No.1-Eshwar is stated to have alleged that PW.2/CW.2-Kantesh was mixing water with milk at the time of supply to the dairy. This allegation led to an altercation between PW.2/CW.2-Kantesh and accused No.1- Eashwar, where PW.2/CW.2-Kantesh contended that he had not mixed any water and the allegation is false while accused No.1-Eshwar insisted on the allegations being true. Hence, accused No.2- Kamaraj, accused No.8-Veerappa and accused No.9- Manjappa also joined into the quarrel and assaulted PW.2/CW.2-Kantesh PW.2/CW.2-Kantesh.
47. At that time, when PW.1/CW.1-Basavarajappa, the complainant was on his way home, he had also inquired as to why accused No.1-Eshwar, accused No.2-Kamaraj, accused No.8-Veerappa and accused No.9-Manjappa were assaulting PW.2/CW.2- Kantesh, when the said accused also made allegation against PW.1/CW.1-Basavarajappa stating that he
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CRL.A No. 100101 of 2016 was mixing water with milk. This resulted in further altercation with accused No.1-Eshwar, accused No.2- Kamaraj, accused No.8-Veerappa and accused No.9- Manjappa assaulting PW.1/CW.1-Basavarajappa also with their hands and pushed PW.1/CW.1- Basavarajappa into an open drain nearby next to the dairy.
48. This being the first incident, the second incident happened later on around 10 p.m. to 10.30 p.m. There is a slight discrepancy in this, inasmuch as, PW.1/CW.1-Basavarajappa has stated that the incident occurred at 10:30, PW.2/CW.2-Kantesh has stated that the incident occurred at 10 p.m., PW.3/CW.4-Rudrappa has stated that the incident occurred at 10:30 p.m., PW.4/CW.3-Kariyappa has stated that incident occurred at 10 p.m., PW.5/CW.5- Girish had stated that it was 10:30 p.m., PW.6/CW.6-Bullamma stated that it was 10 p.m.,
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CRL.A No. 100101 of 2016 PW.7/CW.7-Shobhamma stated that it occurred at 10 p.m.
49. Apart from this discrepancy on time, the occurrence of the incident has been deposed to by the aforesaid witnesses.
50. They have stated that at 10.00/10.30 p.m. when PW-
1/complainant Basavarajappa, PW.2/CW.2-Kantesh, PW.3/CW.4-Rudrappa, PW.4/CW.3-Kariyappa and PW.5/CW.5-Girish were on the way to their grain Threshing yard in front of the house of accused No.7- Kadlenni Basappa, accused Nos. 1 to 12 (accused No.2 being deceased) had gathered in front of that house, formed themselves into an unlawful assembly with an intention to eliminate the complainant and his family members on account of the altercation which occurred at 6 p.m. in front of the milk dairy and when the complainant and his family members reached the said spot, the said accused assaulted the complainant and his family members by 6 sticks, an
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CRL.A No. 100101 of 2016 axe and stones as also abused them in indecent words. At the same time, threatening the life of the complainant and his family members at which time hearing the sounds/noise of the quarrel, PW.6/CW.6- Bullamma, the mother of PW.1/CW.1-Basavarajappa and PW.7/CW.7-Shobhamma, the wife of PW.1/CW.1-Basavarajappa came to the rescue of the complainant and his family members, who have assaulted PW.6/CW.6-Bullamma and PW.7/CW.7- Shobhamma causing grievous injuries to all of them, more particularly, to PW.7/CW.7-Shobhamma whose left wrist got fractured as per wound certificate at Ex.P.9.
51. While the above appeal was pending, an application in IA No.1/2020 had been filed in the above matter invoking the provisions of Section 391 of the Cr.P.C. seeking for additional evidence to be taken on record. It was contended that the said additional evidence was required to unfold the truth in the
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CRL.A No. 100101 of 2016 matter since both the above appeals arise out of a case of complainant and counter-complaint, certain documents which had been annexed with the said application and which had been produced in S.C.No.89/2011 arising out of Cr. No.41/2010 would also be relevant. Considering that the life and liberty of individuals are involved and the accused is required to be given all chances to demonstrate his innocence, the said application IA-1/2020 was allowed. The operative portion of the order reads as under:
"The appellants have filed a memo praying that Sri. Manjappa S/o Kadlenni Basappa, appellant No.6/accused No.9 be allowed to examine as DW-1 before the learned 3rd Addl. District and Sessions Judge, Ballari. Accordingly, the memo is allowed and we direct the 3rd Additional District and Sessions Judge, Ballari, sitting at Hospete to permit the appellant No.6/accused No.9 to tender evidence in defence and permit him to produce and mark the documents noted herein above saying that the prosecution shall be given an opportunity to cross-examine the witness. Appellant No.6/acused No.9 namely Sri. Manjappa S/o Sri.Kadlenni Basappa shall appear before the Sessions Court on 06.11.2020."
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52. Pursuant to the above, the file was sent to the trial Court, notice was issued to the accused and the prosecutor.
53. On 17.11.2020, accused No.9 Manjappa was examined as DW-1, Ex.D.5 to Ex.D.17 were marked and the defence side was closed. The Public Prosecutor was present and submitted that he has no cross-examination. On the defence counsel closing his side, the trial Court sent back the entire records along with evidence of DW-1 and Ex.D.5 to Ex.D.17.
54. Ex.D.5 is the charge sheet No.4/2011 filed in Cr.No.41/2010 out of which S.C.No.89/2011 arose. In the said charge-sheet, it is alleged that on 25.07.2010 at 7 p.m., there was an altercation near the milk dairy. Later on, at 12 hours in the midnight on 25.07.2010, the accused therein carrying sticks, stones and axe had broken into the house of the complainant therein (accused No.7-Kadlenni Basappa) with an intention to cause
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CRL.A No. 100101 of 2016 murder (prosecution story in S.C.No.89/2011). The complainants therein were accused No.7-Kadlenni Basappa, Shantappanavara Basappa, Ambli Jayappa, accused No.4 herein- Kadlenni Sanganabasappa, accused No.12 herein -Kadlenni Shivappa Shanthappanavara Basavarajappa @ Gulappa. Ex.D.6 is the list of witnesses submitted along with that charge sheet.
55. Ex.D.7 is the complaint filed on which basis Cr.No.41/2010 was registered, Ex.D.8 is the First Information Report in Cr.No.41/2010, Ex.D.9 is the panchnama in Cr.No 41/2010, Ex.D.10 is the rough sketch of the spot in Cr.No 41/2010, Ex.D.11 is the Wound Certificate of Kadlenni Manjappa (accused No.9), Ex.D.12 is the MLC in respect of deceased (accused No.2-Kamaraj) issued by City Central Hospital Private Limited, Davanagere, Ex.D.13 is the wound certificate of accused No.3 herein, Lakappa, Ex.D.14 is the wound certificate accused No.8 herein,
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CRL.A No. 100101 of 2016 Veerappa, Ex.D.15 is the wound certificate of accused No.7 herein, Kadlenni Basappa. Ex.D.13 to Ex.D.15 are issued by the Medical Officer, Government General Hospital, Hoovinahadagali, Ballari district. Ex.D.16 is the postmortem report of accused No.2 herein, Kamaraj, Ex.D.17 is the certificate said to be issued by Dr.Raju, a Medico Legal expert of the City Central Hospital Private Limited, to the Police Circle Inspector to Hadagali police station.
56. As aforestated, Cr.No.41/2010 had been registered on the basis of a complaint filed by accused No.6 herein - Jetti Basavarajappa that the complainant and his family members who are the accused in Cr.No.41/2010 had barged into the house of accused No.7-Kadlenni Basappa, assaulted the family members of accused No.7-Kadlenni Basappa and when accused No.2-Kamaraj and others after hearing the sounds of the quarrel had come to the spot, they
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CRL.A No. 100101 of 2016 were also attacked which resulted in injuries as per the wound certificate produced at Exs.D.13 to 15 and the death of accused No.2-Kamaraj which is evident by the MLC at Ex.D.12 and the postmortem report at Ex.D.16. In the MLC at Ex.D.12, it is stated that the patient's brother had informed the hospital that accused No.2-Kamaraj had been assaulted by PW.1/CW.1-Basavarajappa, PW.4/CW.3- Kariyappa, PW.3/CW.4-Rudrappa and others when he was asleep at his residence at about 11 p.m. The MLC in respect of accused No.2-Kamaraj indicates that he was admitted to City Centre Hospital Private Limited, Davangere, at 5:45 a.m. by Lakkappa Jetti(accused No.3 herein). The wound certificates of accused No.3 herein, Lakappa at Ex.D.13 indicates that he was examined at the Government Hospital at Hadagali at 2.10 a.m. on 26.07.2010. Accused No.8- Veerappa was examined on 05.08.2010 at 4 p.m. in terms of Ex.D.14. accused No.7-Kadlenni Basappa
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CRL.A No. 100101 of 2016 was examined at the Government Hospital at Hadagali at 4.10 p.m. Thus, the only two people who were examined around the same time as that of the incident were accused No.3 herein, Lakappa and accused No.2 herein, Kamaraj, the others being examined nearly after 10 days.
57. In the above background, since it has been contended by Shri C.H.Jadhav, learned Senior Counsel that Cr.No.41/2010 and Cr.No.42/2010 are complaint and counter-complaint respectively, it is in fact on that basis, an application in IA No.1/2020 under Section 391 of the Cr.P.C. had been filed for production of additional evidence. The same is not disputed by the learned Additional SPP.
58. In the background of considering Cr.No.41/2010 and Cr.No.42/2010 to be a complaint and counter- complaint, what would be required to be decided by this Court is as to who is the aggressor and who was
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CRL.A No. 100101 of 2016 defending themselves. As also whether the fact as to who is the aggressor is relevant or not.
59. Though it has been contended by Shri C.H.Jadhav that the month of July being in monsoon, there was no requirement for anybody to go to Grain threshing yard. It is the evidence on the part of the accused that they used to sleep in the Grain threshing yard. In fact, the evidence also discloses that two of the male members used to sleep in the house and the others used to sleep in Grain Threshing yard and they would take turns doing so. The family of the complainant being a large family comprising of three brothers, their wives as also their children who are residing in a village, this contention of the complainant cannot be outrightly rejected since the purpose of the same appears to be to give privacy to the other members who stay in the house.
60. In terms of the decision of the Full Bench State Of Karnataka By Circle Inspector Of Police Vs.
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CRL.A No. 100101 of 2016 Hosakeri Ningappa And Another(supra) of this Court as also the Hon'ble Apex Court which has been detailed hereinabove, this court while deciding an appeal arising out of a complaint or a counter- complaint cannot look into the evidence in the other matter.
61. The Full Bench of this Court however has gone on to say that if the said evidence is brought on record in accordance with the law, the same could be looked into. In the present matter, when the appeal was pending an application under Section 391 of the Cr.P.C. was filed which came to be allowed the matter was sent back to the trial Court and Ex.D.5 to 17 marked. Despite an opportunity having been provided to the Public Prosecutor to cross-examine, by this Court, while allowing the application in IA No.1/2020, the prosecution has chosen not to avail the said opportunity and in fact has made a statement before the trial Court that the Public
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CRL.A No. 100101 of 2016 Prosecutor does not intend to cross-examine. Thus, the prosecution has accepted the documents at Ex.D.5 to Ex.D.17 and they have been brought on record in a manner known to the law, there has been no challenge to the documents or the contents thereof.
62. If at all the prosecution wanted to question the same and/or dispute the same, the prosecution could have examined the witness who had marked the said documents, bringing into question the contents of the said documents. That not having been done, even though the authors of the said documents have not been examined, we could look into those documents as held by the Full Bench of this Court.
63. In Cr.No.41/2010 there is an allegation made by accused No.7-Kadlenni Basappa in the complaint filed by him that the accused therein had barged into his house and assaulted him and his family members including accused No.2-Kamaraj. It is alleged that
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CRL.A No. 100101 of 2016 Kamaraj was attacked with an axe, stick and stone resulting in injury to his skull and subsequently resulting in his death on which basis Cr.No.41/2010 was registered.
64. A perusal of the MLC indicates that his brother accused No.3-Lakappa had informed the hospital that the injury occurred at 11 a.m. at the residence of accused No.2-Kamaraj. However, the complaint in Cr.No.41/2010 alleges that the accused trespassed into the house of accused No.7-Kadlenni Basappa and assaulted everyone including accused No.2- Kamaraj who came to the said house. Apparently, the house of accused No.2-Kamaraj and the house of accused No.7-Kadlenni Basappa are different. They do not stay together. If that be so, it has not been explained by the appellants in the above appeal as to why such a statement had been made. The said document having been produced and marked by the appellants themselves. Even otherwise the
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CRL.A No. 100101 of 2016 allegation is that the incident occurred in the grain Threshing yard at 11 p.m. on 25.07.2010. The Wound Certificate of K.Manjunath at Ex.D.11 also indicates that he suffered injuries on account of the assault on 25.07.2010 at 11 p.m. at his residence.
65. If that be so, it is not understood as to on what basis accused No.7-Kadlenni Basappa had filed a complaint on 26.07.2010 at 1 a.m. alleging that the accused had barged into his house at 12 midnight and assaulted him and his family members, including accused No.2-Kamaraj at Ex.D.7 on which basis Cr.No.41/2010 was registered. As per the said complaint, Kamaraj had been injured in the house of accused No.7-Kadlenni Basappa whereas as per the wound certificate MLC he was injured in his own house. The said contradiction has not been explained thus leading to an irresistible conclusion that there is a false statement made.
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66. If that be so, the evidence would only point out to the fact that when the complainants in Cr.No.42/2010 were on the way to their grain Threshing yard, the accused were indeed waiting for them near the house of Kadlenni Basappa and attacked them. If not for the same, the presence of accused No.1-Eshwar, accused No.2-Kamaraj, accused No.3-Lakappa, accused No.10-Basavaraj, accused No.11-Nagarajappa and accused No.12- Kadlenni Shivappa cannot be explained.
67. This Court in Criminal Petition No.1461/2018 (Mansoor and others Vs State of Karnataka and Another) vide its order dated 01.06.2018 has held at paragraph 7 as under:
"7. In this particular case, the argument of the counsel for the petitioners that, the learned investigation should have been conducted by the Two Investigating Officers, is not acceptable. Therefore, the proceedings are not vitiated by the investigation done by the same Investigating Officer in the two cases i.e., in a case and counter case. However, the learned counsel is right in submitting that the learned trial judge is
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erroneously proceeding with the matter with the help of the same public prosecutor attached to the said court. In fact, the said aspect should be taken into consideration by the learned Session Judge and see that a separate prosecutor is appointed for the purpose of conducting a counter case. If the Sessions Judge is of the opinion that the said case is a case and counter case, if for the purpose of framing charges in a counter case, the court has to hear arguments of the counsel for the accused and as well as the learned Public Prosecutor. In that context also, in my opinion before framing of charges and before recording the evidence of the witness, it is just and necessary for the Sessions Judge to see that a separate Public Prosecutor is appointed to proceed with the counter case. Otherwise, the trial may be vitiated and it may become an incurable defect later."
68. The Hon'ble Apex Court in SUDHIR AND OTHERS VS. STATE OF M.P reported in 2001 SCC (Cri) 387, more particularly, at paragraphs 8, 9, 10, 11, 12, 16 and 17 has held as under:
8. It is a salutary practice, when two criminal cases relate to the same incident, they are tried and disposed of by the same court by pronouncing judgments on the same day. Such two different versions of the same incident resulting in two criminal cases are compendiously called "case and counter case" by some High Courts and "cross cases" by some other High Courts. Way back in nineteen hundred and twenties a Division Bench of the Madras High Court (Waller, and Cornish, JJ) made a suggestion (In Re Goriparthi Krishtamma - 1929
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Madras Weekly Notes 881) that "a case and counter case arising out of the same affair should always, if practicable, be tried by the same court, and each party would represent themselves as having been the innocent victims of the aggression of the other."
9. Close to its heels Jackson, J, made an exhortation to the then legislature to provide a mechanism as a statutory provision for trial of both cases by the same court (vide Krishna Pannadi vs. Emperor AIR 1930 Madras 190). The learned judge said thus:
"There is no clear law as regards the procedure in counter cases, a defect which the legislature ought to remedy. It is a generally recognized rule that such cases should be tried in quick succession by the same Judge, who should not pronounce judgment till the hearing of both cases is finished."
10. We are unable to understand why the legislature is still parrying to incorporate such a salubrious practice as a statutory requirement in the Code. The practical reasons for adopting a procedure that such cross cases shall be tried by the same court, can be summarised thus: (I) It staves off the danger of an accused being convicted before his whole case is before the court. (2) It deters conflicting judgments being delivered upon similar facts; and (3) In reality the case and the counter case are, to all intents and purposes, different or conflicting versions of one incident.
11. In fact, many High Courts have reiterated the need to follow the said practice as a necessary legal requirement for preventing conflicting decisions regarding one incident. This court has given its approval to the said practice in Nathi Lal & ors. vs. State of U.P. & anr. [1990 (Supp) SCC 145]. The procedure to be followed in such a situation has been succinctly delineated in the said decision and it can be extracted here:
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"2. We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other."
12. How to implement the said scheme in a situation where one of the two cases (relating to the same incident) is charge-sheeted or complained of, involves offences or offence exclusively triable by a Court of Sessions, but none of the offences involved in the other case is exclusively triable by the Sessions Court. The magistrate before whom the former case reaches has no escape from committing the case to the Sessions Court as provided in Section 209 of the Code. Once the said case is committed to the Sessions Court, thereafter it is governed by the provisions subsumed in Chapter XVIII of the Code. Though, the next case cannot be committed in accordance with Section 209 of the Code, the magistrate has, nevertheless, power to commit the case to the court of Sessions, albeit none of the offences involved therein is exclusively triable by the Sessions Court. Section 323 is incorporated in the Code to meet similar cases also. That section reads thus:
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"If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of chapter XVIII shall apply to the commitment so made."
16. The employment of the word "may" at one place and the word "shall" at another place in the same sub-section unmistakably indicates that when the offence is not triable exclusively by the Sessions Court it is not mandatory that he should order transfer of the case to the Chief Judicial Magistrate after framing a charge. In situations where it is advisable for him to try such offence in his court there is no legal obligation to transfer the case to the Chief Judicial Magistrate. One of the instances for not making the transfer is when a case and counter case have been committed to the Sessions Court and one of those cases involves an offence exclusively triable by the Sessions Court and the other does not involve any such offence.
17. In the present case, the Sessions Judge ought not have transferred the second case to the Chief Judicial Magistrate as he did, but he himself should have tried it in the manner indicated in Nathi Lal (supra). To facilitate such a procedure to be adopted we have to set aside the order passed by the Sessions Judge in the second case. We do so."
69. A division bench of this Court in ABDUL MAJID SAB AND OTHERS VS. STATE OF KARNATAKA reported in ILR 2010 KAR 1719 at paragraphs 25, 26, 27, 28, 29 and 35 has held as under:
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"25. Initially, when the complaint of PW1 and A2 was registered, it was in the nature of a case and counter case. If for any reason the I.O. has found that the complaint of A.2 is baseless and filed 'B' report, it is necessary that he should make that report a part of the record in the final report in question. In the column No.17 of the final report submitted u/s 173 of Cr.PC the I.O. has to give summary of the material facts of the case and nature of complicity of the accused with the offence.
26. In case and counter, in the final report of both the cases, the I.O., has to necessarily furnish all the documents pertaining to the other case and should explain the genesis of the incident explaining whether it is a free fight between two persons/groups and that both are aggressors. The I.O. should state whether one of the persons/groups is an aggressor and that whether the other has caused injuries in exercise of the right of private defence. It is necessary that the I.O. should explain the injuries on the accused. The final report should necessarily contain the above material to enable the prosecutors to lead evidence correctly and for the Judge to understand the incident in a proper legal perspective to understand the guilt of the accused.
27. It is well-settled principle in a case and a counter the same I.O. should investigate both the cases and should file final report. The different prosecutors should conduct prosecution, the same Judge should try the cases simultaneously
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and render separate judgments. It is a judicial dicta that the Court should not read/get influenced by the evidence recorded in the other case, unless the said material in the other case is marked as an evidence in the case in question. To say that the Court should not read/influenced by the evidence recorded in the other case under all circumstances would be a perverse view and runs counter to the logic of holding simultaneous investigation by the same I.O. and trial by the same Judge. Otherwise, it is impossible for the Judge to appreciate the guilt of the accused to find out whether both are aggressors and both are guilty of indulging in free fight or one of them is an aggressor and the other caused injuries on the accused in exercise of right of private defence.
28. In this regard for useful benefit, the provisions of Madras Police Standing Orders pertaining to investigation of a case and a counter in Rule-588A are extracted hereunder:
"588-A: Charge sheets in cases and counter cases: In a complaint and counter complaint obviously arising out of the same transaction the Investigating Officer should enquire into both of them and adopt one or the other of the two courses, viz., (1) to charge the case whether the accused were the aggressors or (2) to refer both the cases if he should find them untrue. When the Investigating Officer proceeds on the basis of the complaint it is his duty to exhibit the
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counter complaint in the Court and also to prove medical certificates of persons wounded on the opposite sides. He should place before the court a definite case which he asks it to accept. The Investigating Officer in such cases should not accept in to one complaint and examine only witnesses who support it and give no explanations all for the injuries caused to the other side. The truth in these cases is invariably not in strict conformity with either complaint and it is quite necessary that all the facts are placed before the court to enable it to arrive at the truth and a just decision.
If the Investigating Officer finds that the choice of either course is difficult viz. to charge one of the two cases or to throw out both, he should seek the opinion of the Public Prosecutor of the district and act accordingly. A final report should be sent in respect of the case referred as mistake of law and the complainant or the counter-complainant, as the case may be should be advised about the disposal by a notice in F.96 and to seek remedy before the specific Magistrate, if he is aggrieved by the disposal of the case by the Police."
29. We place on record that we have not come across any single case so far where the final reports in case and counter are filed in the manner indicated above. The imprudent and casual practice of submitting final reports without reference to relevant material of the connected case would only result in improper prosecution
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CRL.A No. 100101 of 2016 and many a time the truth of the incident is not projected before the Court, which ultimately result in unjust conviction or unjust acquittal. The Karnataka Police Manual does not lay down any guidelines for the I.O. regarding the procedures to be followed in the investigation of a case and counter and for filing the final report. It is high time that the necessary amendments have to be effected to the Karnataka Police Manual in this regard.
35. The Registry is directed to send a copy of the judgment to the Home Secretary, Director General of Police and Hon'ble Law Minister to give effect to the observations made in paras 26, 27 and 28 regarding the procedure to be followed by the I.O. in a 'case and counter case' and for effecting necessary amendments to the Karnataka Police Manual."
70. In view of the above decisions, it is clear that the same Investigating Officer should have investigated both the cases and should have filed the final report. Unfortunately in the present case, Crime No.42/2010 has been investigated by PW.15/CW.18-Nagappa, whereas Crime No.41/2010 has been investigated by one Prakash Rathode, CPI, Hadagali, even though the incident has more or less occurred at the same time as per both the complaints. Though in Crime
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CRL.A No. 100101 of 2016 No.41/2010, it is alleged that the incident occurred at midnight, in Crime No.42/2010, it is alleged that the incident occurred at 10.30 p.m. The fact remains that the complainants and the accused in both the matters are one and the same, inasmuch as in Crime No.42/2010, the complainants therein are the accused in Crime No.41/2010 and the accused in Crime No.41/2010 are the complainants in Crime No.42/2010 or if not complainants, they are the witnesses for the prosecution.
71. Such being the case, the Investigating Officer ought to have been more vigilant and the investigation should have been done by the same officer instead of two officers, even though one was for lessor offence and the other was for a heinous offence of murder.
72. If at all the Investigating Officer had been more circumspect and had recognized the fact that the accused and the complainants were one and the same in the both matters, it would have led to
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CRL.A No. 100101 of 2016 investigation of both the cases by one single investigating officer and the truth could have come out.
73. In the present case, unfortunately, the investigating officer in Crime No.41/2010 has sought to prove his case, while investigating officer in Crime No.42/2010 has sought to prove his case separately without any regard for the truth of the matter and/or ascertaining the veracity of all the witnesses and documents. Both the investigating officers have proceeded as if their case is true one and sought to prosecute the matter.
74. In view of the same, in our considered opinion, the accused have suffered prejudice, the true facts have not come out in the investigation. This is also clear from the fact that only the interested witnesses have been examined in Crime No.42/2010, inasmuch as PW.1/CW.1-Basavarajappa being the complainant, PW.2/CW.2-Kantesh is the son of the complainant,
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CRL.A No. 100101 of 2016 PW.3/CW.4-Rudrappa is the younger brother of the complainant, PW.4/CW.3-Kariappa is another young brother of the complainant, PW.5/CW.5-Girish is another son of the complainant, PW.6/CW.6- Bullamma is the mother of the complainant, PW.7/CW.7-Shobhamma is the wife of the complainant, PW.8/CW.8-Ashok is stated to have pacified the fight and the other witnesses are the official witnesses. Though the witnesses have spoken of various third parties being present at spot, none of those third parties have been examined in the matter.
75. Though PW.1/CW.1-Basavarajappa has stated that CW.11-Shivappa, CW.9-Manjappa, CW.10- Virupakshappa and PW.8/CW.8-Ashok came to the spot and pacified the quarrel, it is only PW.8/CW.8- Ashok who had been examined, while the other third party witnesses have been examined. PW.2/CW.2- Kantesh has also stated that apart from PW.8/CW.8-
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CRL.A No. 100101 of 2016 Ashok and CW.10-Virupakshappa, there were few others who were present at spot. Neither CW.10- Virupakshappa nor the other persons as stated have been examined or their statements taken. PW.3/CW.4-Rudrappa has stated that PW.8/CW.8- Ashok, CW.10-Virupakshappa and CW.11-Shivappa came to the spot within 5 minutes after the fight having been broken out. Again, CW.10- Virupakshappa and CW.11-Shivappa have not been examined. PW.4/CW.3-Kariappa has stated that about 50 people had gathered at the place of the altercation. However, none of those persons have been examined or their statements obtained. PW.5/CW.5-Girish has stated that CW.11-Shivappa, CW.9-Manjappa, Garvangarappa, PW.8/CW.8-Ashok, CW.10-Virupakshappa came and pacified the fight.
76. As observed above, only PW.8/CW.8-Ashok has been examined and none of the others were examined. PW.8/CW.8-Ashok has stated that there were many
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CRL.A No. 100101 of 2016 people present when the fight broke out at 10.30 p.m. However, none of them have been examined.
77. It is rather shocking that despite the witnesses having mentioned about several other persons being present who could have been termed as independent witnesses, it is only the family members and/or related parties who have been examined in the matter. Thus, the creditability of this evidence is in doubt.
78. The other aspects which are again contradictory and/or not matching with the evidence of other witnesses is that, inasmuch as PW.1/CW.1- Basavarajappa, PW.2/CW.2-Kantesh and PW.3/CW.4-Rudrappa have stated that CW.11- Shivappa, CW.9-Manjappa, CW.10-Virupakshappa and PW.8/CW.8-Ashok have sent the injured to the hospital, whereas PW.4/CW.3-Kariappa, PW.5/CW.5-Girish, PW.6/CW.6-Bullamma, PW.7/CW.7-Shobhamma and PW.8/CW.8-Ashok have
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CRL.A No. 100101 of 2016 stated that it was the police who sent them to the hospital and infact, it the police who took them to the hospital.
79. There is also discrepancy as regards the time that the complainants spent in the hospital. PW.3/CW.4- Rudrappa does not remember how many days he was hospitalized, but he was hospitalized and treated as an inpatient and all the injured were discharged together. PW.4/CW.3-Kariappa states that he was in the hospital for about 3 days, PW.5/CW.5-Girish states that they were in the hospital for 4 days, PW.7/CW.7-Shobhamma states that they were in the hospital for 8 days. The injured themselves, who are related to each other, are unsure of how long they had been hospitalized, inasmuch as the lowest being 3 days and the highest being 8 days, which is completely improbable and indicates that the witnesses are either tutored or they do not know the
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CRL.A No. 100101 of 2016 facts of the case and/or that they were not there at the scene of occurrence.
80. Ex.P7 to Ex.P11 are the wound certificates. In all the aforesaid wound certificates, the time of the incident is stated to be 25.07.2010 at 11.00 p.m., which also is a departure from the allegation that the incident happened between 10.00 p.m. to 10.30 p.m.
81. In the wound certificates, the person who is stated to have assaulted the injured is stated to be Rajshekar B. Jetti who had used a stick and an axe. Shockingly, the said Rajshekar B.Jetti has not been arraigned as an accused in the proceedings. The reason for the same apparently is that Rajashekar B. Jetti was working in Karnataka State Road Transport Corporation and was posted in Ranebennur at the time of the incident. Accepting either of these two situations is not feasible. When the complainants having stated that Rajashekar B. Jetti had assaulted them, he has not been arraigned as an accused. If
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CRL.A No. 100101 of 2016 during the investigation, it was found that he was stationed at Ranebennur, then the entire allegations made in the complaint as also statement recorded in the wound certificate are proven to be false.
82. Thus, these wound certificates also cannot be looked into by us, inasmuch as they are based on false information. Though the wound certificates require X-Ray to be taken as regards the injuries, it is not clear from the evidence on record, if infact X-Rays had to be taken and since the said X-Rays definitely have not been produced before the trial Court or before this Court, it is to be presumed that there are no X-Rays that were taken and the reference made in the wound certificate are only on paper. The shocking aspect of this investigation is that, when X- Rays are ordered to be taken or recommended to be taken by the concerned doctor, the investigating officer has not even bothered to obtain the said X- Rays when the offences alleged are under Sections
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CRL.A No. 100101 of 2016 143, 147, 148, 324 r/w 149 of the IPC. This again establishes the callous nature of the investigation which has been conducted by the concerned investigating officer.
83. The conduct of Investigation in the manner done, in our considered opinion has caused prejudice to the Accused, entitling them to benefit of doubt.
84. In the light of the above, all the prosecution witnesses being interested witnesses being the relatives of the complainant and there being no independent corroboration of the said evidence by independent third party witnesses, we are of the considered opinion that the prosecution has not been able to drive home the guilt of the accused, more so when they were third parties who were present at the spot but have not been examined nor their statement recorded. The trial Court has blindly believed the version of the prosecution or rather held
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CRL.A No. 100101 of 2016 that there is nothing to disbelieve the version of the prosecution witnesses.
85. The trial Court ought to have appreciated the fact that there is no evidence on record which could prove beyond reasonable doubt about the involvement of the accused in the said offence. The contradictions as also discrepancies which have been pointed out above would lead only to one conclusion, that the prosecution has not been able to drive home the guilt of accused, maybe on account of the investigation not being proper and/or prosecution was not conducted properly. Be it for whatever reasons, the discrepancies and contradiction detailed above can only lead to one conclusion that the prosecution is unable to prove the guilt of the accused. In view thereof, we pass the following:
ORDER
i) The appeal as filed is allowed.
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ii) The accused are acquitted of the offences under Sections 148 and 307 read with Section 149 of the IPC.
iii) Since the accused are on bail, no order needs to be passed thereon. The bail bonds stand discharged.
iv) The fine amount deposited is directed to be refunded to the respective accused.
v) In view of the callous manner in which the investigation has occurred, we issue the following directions.
a) Where complaints and counter complaints are filed, both are to be investigated by the same Investigating Officer.
b) In all matters, where there are
complaints, which have been filed
though they may be filed as stand alone
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complaints and not complaint and counter-complaint, the police officers and/or the investigating officers ought to apply their mind to see if the crime alleged against by either of the parties is more or less at the same time as also to appreciate if the accused in one matter is the complainant in the other matter and vice versa, in such cases, a single investigating officer has to investigate both the matters and the same should not be investigated by two different investigating officers.
c) If there was one investigating officer for both offences and one of the offences gets to be serious or heinous requiring the investigation to be conducted by a senior officer, in that event the senior officer will have to investigate both the
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CRL.A No. 100101 of 2016 offences, assisted by the earlier Investigating Officer.
d) During the course of investigation, the investigating officer is required to ascertain the truth of the matter and not take sides with either of the parties. The investigating officer has to ascertain the veracity of the complaints, which has been filed by both the parties, conduct a comprehensive investigation in both complaints as regards the guilt of the concerned. It is not necessary that both of them have to be guilty. There could be a possibility of one set of complainants being guilty and other being innocent. In such case, the charge sheet would have to be filed only against the guilty person/s and not against the person/s who are not guilty.
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CRL.A No. 100101 of 2016 If however, the investigating officer were to come to a conclusion that both the parties are guilty, then charge sheet could be filed against both the parties.
e) The Director General of Police, State of Karnataka is directed to issue necessary directions/guidelines/Standard operating Procedure in terms of the above.
f) The Additional Registrar General is
directed to send a copy of this
judgement to the Director General of Police to give effect to observation made in this judgment as also in Abdul Nazeeb Sab's case. The Director General of Police to formulate and issue necessary guidelines/Standard Operating Procedure for the Investigating Officers to be followed
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CRL.A No. 100101 of 2016 while investigating a complaint and a counter-complaint. Such guidelines to be circulated to all the investigating Officers and whenever training is held, to also cover this aspect in such training.
g) A copy of the guidelines framed by the Director General of Police, State of Karnataka to be placed on record within a period of 12 weeks from today.
vi) Whenever a complaint and counter complaint or appear to be a complaint and counter complaint come up for trial, the trial court to conduct the same as per the directions of the Full Bench in STATE OF KARNATAKA BY CIRCLE INSPECTOR OF POLICE VS.
HOSAKERI NINGAPPA AND ANOTHER reported in ILR 2012 KAR 509 as under:
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a) The procedure to be adopted in case and counter case is that the investigation should be conducted by the same Investigating Officer and the prosecution should be conducted by two different Public Prosecutors.
b) The trial should be conducted by the same Court. After recording the evidence and after hearing the arguments, the judgment should be reserved in one case and thereafter the evidence should be recorded and the arguments should be heard and Judgment reserved in the other case.
c) The arguments in both the matters shall be heard by the same Learned Judge.
The judgments should be pronounced by the same Judge simultaneously i.e., one after the other.
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d) In deciding each case, the Trial Judge can only rely on the evidence recorded in that particular case and the evidence recorded in the cross case (or counter case) cannot be looked into. The Judge shall not be influenced by the evidence or arguments in the cross case.
However, if the evidence recorded in one case is brought on record in another case in accordance with the procedure known to law, then, such evidence which is legally brought on record can be looked into. Except in such situation, the evidence recorded in one case cannot be looked into in another case.
e) The additional Registrar General of this bench is directed to once again circulate the judgement in STATE OF KARNATAKA BY CIRCLE INSPECTOR
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OF POLICE VS. HOSAKERI NINGAPPA AND ANOTHER reported in ILR 2012 KAR 509 as also this judgement to all judges in the state of Karnataka, dealing with Criminal matters.
vii) Whenever two appeals are filed arising out of a complaint and counter complaint or appear to be a complaint and counter-complaint, the Appellate Court is to follow the following procedure:
a) In each of the appeals a different prosecutor to appear and argue on behalf of the State,
b) Each appeal would be required to be independently heard.
c) After arguments are heard in one appeal the judgment is required to be reserved,
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d) After argument is heard in the second appeal the judgment is to be reserved,
e) Two separate judgments are required to be passed in each of the appeals,
f) While passing judgments in each of the appeals, the Appellate Court cannot look into the evidence led or be influenced by the arguments advanced in the other appeal.
g) However, if the evidence recorded in one case is brought on record in another case in accordance with the procedure known to law, then, such evidence which is legally brought on record can be looked into. Except in such situation, the evidence recorded in one case cannot be looked into in another case.
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h) Suffice it to say that each appeal has to be decided on the basis of the evidence and the law applicable to that particular appeal.
i) If the Appeal is heard by a Division Bench the same judge to pass judgements in both the Appeals.
j) The Additional Registrar General,
is directed to send a copy of
this judgment to the Director of
Public Prosecutions to enable the
said director to formulate the
necessary guidelines/Standard
Operating Procedure for the Public Prosecutors to be followed while prosecuting a complaint and counter-
complaint. Such guidelines to be
circulated to all the prosecutors and
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whenever training is held, to also cover this aspect in such training.
k) A Copy of the guidelines framed by the Director of Prosecutions, State of Karnataka to be placed on record within a period of 12 weeks from today.
Sd/-
JUDGE Sd/-
JUDGE JM/-