Karnataka High Court
Govindappa vs The State Of Karnataka on 26 November, 2012
1 Crl.As.623 c/w 763/09
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF NOVEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE A.S. PACHHAPURE
CRIMINAL APPEAL No.623 OF 2009
C/W
CRIMINAL APPEAL NO.763 OF 2009
IN CRL.A. 623/09
BETWEEN:
1. GOVINDAPPA
S/O SRI HANUMANARASAIAH
AGED ABOUT 70 YEARS
2. JAYAMMA
W/O SRI GOVINDAPPA
AGED ABOUT 55 YEARS
3. LAKSHMI
W/O ANJANAMURTHY
AGED ABOUT 34 YEARS
[ACCUSED NO.2 IS REPORTED
TO BE DEAD AND HENCE,
CASE AGAINST HER HAS ABATED]
APPELLANT NOS 1 & 3 ARE
RESIDING AT NO.489
GOVINDAPPA GARDEN
HESSARAGHATTA ROAD
T. DASARAHALLI
BANGALORE-560 057.
... APPELLANTS
(BY SRI C G GOPALASWAMY, ADV.)
2 Crl.As.623 c/w 763/09
AND:
STATE OF KARNATAKA
BY ASST. COMMISSIONER OF POLICE
YESHWANTHAPUR SUB-DIVISION
BANGALORE.
... RESPONDENT
(BY SRI SATISH R GIRJI, HCGP)
THIS CRL.A. IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED
09.04.2009 AND SENTENCE DATED 13.04.2009 PASSED IN
SPL.C.C. NO.97/2006 ON THE FILE OF THE II. ADDL.CITY
CIVIL AND SESSIONS JUDGE, BANGALORE - CONVICTING THE
APPELLANTS/ACCUSED NOS.1 TO 3 ARE PUNISHABLE UNDER
SECTION 323, 504 READ WITH SECTION 34 OF IPC AND
ACCUSED NOS.1 & 3 ARE SENTENCED TO PAY A FINE OF
RS.1,000/- EACH FOR THE OFFENCE PUNISHABLE UNDER
SECTION 323 READ WITH 34 OF IPC IN DEFAULT OF
PAYMENT OF FINE THEY SHALL SUFFER SIMPLE
IMPRISONMENT FOR ONE MONTH AND ACCUSED NOS.1 & 3 ARE
SENTENCED TO PAY A FINE OF RS.2,000/- EACH FOR THE
OFFENCE PUNISHABLE UNDER SECTION 504 READ WITH 34 OF
IPC IN DEFAULT OF PAYMENT OF FINE THEY SHALL SUFFER
SIMPLE IMPRISONMENT FOR TWO MONTHS.
IN CRL.A 763/09
BETWEEN:
STATE BY
ASST. COMMISSIONER OF POLICE
YESHWANTHAPUR SUB-DIVISION
BANGALORE.
... APPELLANT
(BY SRI SATISH R GIRJI, HCGP)
AND:
1. GOVINDAPPA
S/O LATE HANUMANARASAIAH
AGED ABOUT 67 YEARS
3 Crl.As.623 c/w 763/09
2. JAYAMMA
W/O SRI GOVINDAPPA
AGED ABOUT 55 YEARS
3. LAKSHMI
W/O ANJANAMURTHY
AGED ABOUT 31 YEARS
[ACCUSED NO.2 IS REPORTED
TO BE DEAD AND HENCE,
CASE AGAINST HER HAS ABATED]
APPELLANT NOS 1 & 3 ARE
RESIDING AT NO.489
GOVINDAPPA GARDEN
HESARAGHATTA ROAD
T. DASARAHALLI
BANGALORE-57.
... RESPONDENTS
(BY SRIYUTHS C G GOPALASWAMY &
B G SRIDHARA, ADVS)
THIS CRL.A. IS FILED UNDER SECTION 378(1)&(3)
CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGEMENT AND ORDER OF ACQUITTAL DATED 9.4.2009
PASSED BY THE II. ADDL. CITY CIVIL AND SESSIONS
JUDGE, BANGALORE IN SPECIAL CASE NO.97/2006 -
THEREBY ACQUITTING THE ACCUSED/RESPONDENTS NO.1 TO 3
FOR THE OFFENCE PUNISHABLE UNDER SECTION 324 AND
506(ii) READ WITH SECTION 34 OF IPC AND ALSO FOR
OFFENCE PUNISHABLE UNDER SECTION 3(1)(x) OF THE SC &
THE ST (PREVENTION OF ATROCITIES) ACT, 1989.
THESE CRL.AS. COMING ON FOR FINAL HEARING,
THIS DAY THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
In former appeal, the appellants have challenged their conviction and sentence for the 4 Crl.As.623 c/w 763/09 offence punishable under Sections 323 and 504 IPC, whereas in the later, the State has challenged the acquittal for other offences, quantum and sentence of fine.
2. The facts relevant for the purpose of these appeals are as under:
PW2 - Rathnamma is the mother and PW4 - Gururaj is the brother of PW1 - Chandrakala. The appellants in the former appeal who are accused before the Trial Court are the neighbors of PW2 - Rathnamma. There was civil dispute between the parties for erection of compound wall by the accused and thereby there was enmity amongst them. The further facts reveal that on 09.02.2005 at about 12.15 p.m. when PW2 - Rathnamma was getting the house painted by PW3 - Ranganath, it is alleged that the accused in furtherance of their common intention came to the place where the painting of compound wall was carrying out and they questioned as to why they were painting the compound wall and they said to have abused PW1 - Chandrakala by referring to her 5 Crl.As.623 c/w 763/09 caste and all the accused bet her, kicked her and assaulted with broken piece of asbestos cement sheet. In the incident, PW1 -
Chandrakala sustained injuries and she was taken to hospital for treatment and a complaint was filed by her which came to be registered in Cr.No.43/2005. After sending FIR, the spot mahazar Ex.P2 was held in the presence of attesting witnesses, statement of witnesses were recorded. The injury certificate and caste certificate of both the parties were collected and on completion of investigation, chargesheet came to be filed for the offence punishable under Sections 323, 324, 506(B) read with Section 34 of IPC and under Sections 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act of 1989' for short).
3. During the trial, the prosecution examined PWs.1 to 12 and got marked documents Exs.P1 to P9. Statement of the accused were recorded under Section 313 Cr.P.C. The second accused died during the pendency of trial. The accused led the evidence 6 Crl.As.623 c/w 763/09 by examining as DWs.1 to 3 and in their evidence, EXs.D1 and D2 were marked. The Trial Court after hearing the counsel for parties and on appreciation of the material placed on record, acquitted the accused for the charge under Sections 324 and 506(II) read with Section 34 of IPC and under Sections 3(1) (x) of the Act of 1989. The accused Nos.1 and 3 i.e., appellants 1 and 3 in the former appeal were convicted for the offence under Sections 323 and 504 read with Section 34 of IPC. The Trial Court has ordered sentence of payment of fine. The accused aggrieved by the conviction and sentence, preferred the former appeal whereas the State aggrieved by the acquittal of accused for the charge under Section 3(1)(x) of the Act of 1989 and under Sections 324 And 506(II) read with Section 34 of IPC, and also the quantum of fine has preferred the second appeal.
4. I have heard learned Counsel for the appellants as well as learned High Court Government Pleader for the State.
7 Crl.As.623 c/w 763/09
5. The point that arises for my consideration is:
"Whether the appellants have made out any grounds to warrant interference in the judgment and order of convicting the accused for the offence under Sections 323 and 504 read with Section 34 of IPC; and acquitting them for other offences and ordering payment of fine?"
6. It is the contention of learned Counsel for the appellants that there are many discrepancies in the evidence of prosecution and therefore, he claims that the conviction ordered by the Trial Court is erroneous and illegal. It is also his submission that appellant No.2 (accused No.3) also sustained injuries in the incident and the defence evidence led would disclose that the complainant and her mother PW2 - Rathnamma were aggressors who encroached upon the property of accused to paint the wall which exclusively belongs to the accused. Hence, he submits that the appellants in the former appeal are entitled to an order of acquittal. So far as the sentence is concerned, he submits that 8 Crl.As.623 c/w 763/09 the injuries said to have been sustained by PW1 - Chandrakala are superficial and in the incident, accused No.3 also sustained injuries, therefore, he claims that as there was a scuffle amongst the parties and as PWs.1 and 2 are the aggressor, he contends that the order of Trial Court with regard to payment of fine need not be interfered with.
7. On the other hand, learned High Court Government Pleader submits that the Trial Court has taken into consideration the material placed on record and has rightly convicted accused Nos.1 and 3 for the offence under Section 323 and 504 of IPC and he claims that there is ample material on record to prove the offence under Sections 3(1) (x) of the Act of 1989 and as the assault was with the broken piece of AC sheet, he submits that it is a dangerous weapon and the conviction could have been granted for the offence under Section 324 of IPC. He also submits that the fine ordered is on the lower side and there has to be a severe sentence for the offence proved.
9 Crl.As.623 c/w 763/09
8. PW12 - Dr.Bharathikumari examined PW1 - Chandrakala on the date of incident at about 5.45 p.m. and noted the injuries mentioned in Ex.P7.
"1. C/o pain in abdomen;
2. C/o pain all over the body;
3. Contusion over right shoulder;
4. Brim over back 5cm x 5cm; and
5. multiple brims over right hand.
She has certified that these injuries are simple in nature. She was brought to the hospital by her father with a history of assault caused by accused Nos.1 to 3 at about 12.15 p.m. on
09.02.2005. As could be seen from Ex.P7 and the evidence of PW12, it is clear that PW1 sustained the injuries and hence, she is an injured witness.
9. Generally, an injured does not implicate an innocent and does not leave a person who has really caused harm. In this context, the evidence led by prosecution has to be looked into. In the complaint Ex.P1, PW1 - Chandrakala states that the 10 Crl.As.623 c/w 763/09 accused with a common intention to cause assault came at the spot where painting was going on and said to have abused her in vulgar language referring to her caste and they also said to have assaulted her with a broken piece of AC sheet and also threatened danger to her life. PW2 - Rathnamma is her mother and in her evidence, she states about the abusive words referring to the caste of PW1 as 'voda munde'. PW1 - Chandrakala in her evidence states about the assault by accused No.1 with AC sheet and the overtact of accused Nos.2 and 3. Except PW1 - Chandrakala, other witnesses i.e., PW2 - Rathnamma, PW3 - Ranganath, the painter does not refer specific overtact of accused persons. PW3 - Ranganath, the painter states that it is accused No.1 who assaulted PW1 - Chandrakala with AC sheet. At the same time, if the evidence of PW4 - Gururaj, the brother of injured is perused, he refers to the overtacts of only two accused and not all the three. He states specifically that two accused came to the place of incident and caused assault on PW1 - Chandrakala.
11 Crl.As.623 c/w 763/09
10. PW7 - Leelavathi is the person who entered the house of PW1 - Chandrakala at the time of incident. Though she states about the presence of all the three accused, she only states about beating and dragging of injured by the accused. PW9 - Tharamani is the brother of PW7 and he speaks about the galata and does not speaks about the overtact of the accused. So, the scrutiny of evidence of PWs.1 to 4, 7 and 9 reveals consistency only to the extent of role played by accused No.1 in the incident. The evidence of these witnesses are inconsistent so far as the participation of deceased accused No.2 and accused No.3.
11. When the evidence of independent witnesses are not consistent and there are discrepancies so far as the overtact are concerned, such evidence is not sufficient to corroborate the evidence of injured and other interested witnesses, but anyhow as far as the evidence of PW1 - Chandrakala is concerned, she is the injured and she states about the assault by accused No.1 with broken piece of AC sheet. The injuries sustained by her 12 Crl.As.623 c/w 763/09 and the evidence of PW12 - Dr.Bharatikumari corroborate the evidence of injured and therefore to the extent of overtact by accused No.1, there is consistency. The evidence of PW1 - injured was supported by the medical evidence. In such circumstances, I think that the conviction of accused No.1 has to be affirmed.
12. So far as the offence under Section 3(1)(x) of the Act of 1989 is concerned, it is relevant to note that except the interested evidence of PWs.1 to 4 and 7, there is no other material on record and there is no consistency in words said to have been uttered by the accused. The allegation in this regard are general and vague as against all the accused. It is for this reason that the Trial Court did not accept the evidence of prosecution witnesses and I think that it was justified in granting on order of acquittal.
13. In an conviction for the offence under Section 324 of IPC, it is necessary for the prosecution to establish that the weapon used is a 13 Crl.As.623 c/w 763/09 dangerous weapon in causing assault. Accused No.1 has used broken piece of AC sheet and by any stretch of imagination, it cannot be said that it is a dangerous weapon, therefore, the Trial Court has rightly acquitted accused No.1 for the offence under Section 324 of IPC. Even as regards to offence under Section 504 IPC, there is no consistent version.
14. Even otherwise, an appeal is filed by the State as against the order of acquittal, the Appellate Court will be slow in interfering with such orders. Even if a second view is possible, the one accepted by the Trial Court cannot be disturbed. Further more, so far as the sentence is concerned, the material placed on record reveal that accused NO.3 also sustained injuries in the incident and Ex.D1 is the injury certificate produced. Though the Trial Court has not accepted the defence of accused to consider the quantum of sentence, I think the defence taken is relevant as there is enmity between the parties in view of the erection of compound wall and taking into consideration the fact 14 Crl.As.623 c/w 763/09 that accused No.3 is also a injured person, I do not think it is just and proper to interfere with the sentence ordered by the Trial Court as against accused No.1.
15. In that view of the matter, Criminal Appeal No.623/2009 is allowed in part.
Conviction and sentence ordered by the Trial Court for the offence under Section 323 of IPC as against first appellant (accused No.1) is affirmed by setting aside conviction for the offence under Section 504 IPC. Conviction and sentence for the offence under Sections 323 and 504 IPC as against third appellant (accused NO.3) is set aside.
Criminal Appeal No.763/2009 preferred by the State is dismissed.
The acquitted appellant is entitled to refund of fine amount, if any, deposited.
No costs.
Sd/-
JUDGE *bgn/-