Karnataka High Court
State By Malur Police vs Venkateshappa on 21 September, 2010
Author: K.Sreedhar Rao
Bench: K.Sreedhar Rao
CRL.A. NO. 468 OF 2oo4:~ E PRESENT IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 14'?" DAY OF SEPTEMBER, 2010 THE HONBLE MR. JUSTICE K.sREEDHARjR2$_O_:"'«,VA AND THE HON'BLE MR. JUSTICE 3.:/;"PI$I?frj""» CRL.A. NO. 468 oF"2e7o4°-.t CRL.R.P. N_0-361 OF 2004 ' _ BEIw"1£ENe;.}':::, state"'by1'Ma1ur:I>c$1:c;%.v « .. .. . 2 (By S_ri (}D.Ef311_Vava.1%;-i Singfi, spp) ' _ 'V"zZeI'Tk'afcVe'r:.happa, "S"/*0. Baehappa, Ageifi about 40 years. E .. ;N,<':lg<":4'tpp£1, S10. Bachappa. Aged about 26 years, Dhanegowda, S/0. Bachappa, Munishamappa, S/0. Bachappa, Aged about 26 years, Appellant 5. Lakshrnana, S / 0. Baohappa, Aged about 22 years, 6. Shekar, S / o. Bachhappa, Maj or, 7. Srinivasa, S/o. Bachappa, . Aged about 18 years, i 8. Lalithamma, ._ pg --. W/o. Nagaraja N'agap_pg;.__ Aged about"28 'grears," = V. Agl'Jagai*aj11,"~.pV"' _ Aged alo'out"22 'yearsg, -- . 10. :'va:i11thayrafiiffia',"'--. A ' if W/lo. Venkatelshap'pa, ' " Aged a"o.o_u't 35 years, . 2 ~ ,5/o_'.~..Ci1--i.kkabyrappa, 0' ~tMa.J0r;iset.e"' Pe'thanahalli. .. ""All.are R/o. Nallappanahalli village, -Malur taluk. Respondents
AB. Patil, Sr. Counsel for Mylaraiah Assts., Advocate) This Crl.A. is filed U/s.3"/8(1) 8: {3} of Cr.P.C. by the N State PP. for the State praying that this Hon'ble Court may be pleased to grant leave to file an appeal against the judgment dated 31.10.2003 passed by the Prl. S.J., Kolar, in S.C.No. 136/95 --- acquitting the respondents/accused for the P ..
offences pumshable U/s.143, 148, 323, .;ru/w. Sec.149 of IPC and U/s.3, 4 and 5 of the I;::idiane_Ex1'j1o_siVe Substances Act. The Appellant/State pra3,r_sV_§h.g1t'V--.tV:1*;e aIv:L)é)veb order may be set aside.
CRL.R.P. NO. 6}. OF 2004:-
BETWEEN:--
Smt. Ram, W/0. Ragashekar, Aged about 26 years, ' J __ R/ at Bappanahalli v1'11age._ V Huralagerl P.o..~3ta, I ' Malur Taluk, ' _. , .
Kolar D1s§tf1ci_;'----. e .... _ Petitioner (By Sri K.S'.1\?:_,K§11'an'tE1'V,'A§jVQCa.te) Andy 1 , 'V Sri Vefikateshsppa, Nfigappa.
1" . «A " "Sf i_''_vI)__f1;e_iriegowcia, Munishamappa, A. __ Lakshmana, 7f6;e sn Shekar, ' " Sri Srinivasa, S1. N0s.1 to 7 are children of Sri Baehappa, all are majors.
10.
11. Smt. Lalithamma, W/o. Nagaraja @ Nagappa, Age Major, Smt. Sumithramma, W/o. Nagaraju, Age Major, Smt. Munithayamma, ~ j W/0. Venkateshappa, Age Major, Malur Taluk, _ Kolar District, -
Now R;/'atjifianakanahalliw Vi11--age.,...= Vakka1erii'QjIiob1i,t_' __ .
Tf1}€WaI1'ét151:.a.11i~-- Post)' ' . ' . All are R/0. Naliéappanahtaiii , Koiai'. <3: Diet_r1ct.« ._ V , A Sjo.' Chikkabyrapoa;
Age .._41\/iajor, . 7 L . _ Pethan_aha1h.
Hoskote"Ta1uk, .
Bangalore District.
" M. of Karnataka, "i-'{ep.__ byits State Public Prosecutor, I-iighl Court of Karnataka, Bangalore.
V' ..[By Stir-'A.B. Patil, Sr. Counsel for " l\/iyiaraiah Associates for R1 to R11) 2_(By5Sri G; Bhavani Singh, SPP for R12] Respondents This Cr1.R.P. 1s filed U/s.397 r/w.Sec/101 of Cr.P.C. by A "the Advocate for the petitioner praying that this Hon'ble Court may be pleased to set aside the judgment and order % dated 31.10.2003 passed by the Prl. 'in S.C.No.136/95. " " -- ' "
This Appeal & Revision Pet1t'i'on« coining'for._hear1'ng'=onbT. 00 this day, PINTO. J., delivered the folilovyingfp ' * Jvnamshi.
These two cases ofggsameijvudgrnent dated 31.10.2003 passed the-- Judge, Kolar in s.e.No.13s/1,995 acq'tiita§1g_" alvle.th-eflrespondents of the offences :f1:48,0é3, 324 and 302 I'/'W. Sec.lv49ggv 4 and 5 of the Indian Explosives Su'bstar1lees~A«ct._. 15908. g 2. --. w*1q:1;».a State'"has filed Cr1.A.No.468/2004 against o3;der.h_of ackzjueittal, the injured complainant ---- PWl has 0 /2004. Since both cases relate to same 'incident,' ilcommon judgment is passed.
"3: The parties in this appeal are referred as per 0' rank in the trial Court.
4. The Malur Police registered a case in Crime No.11l/1995 on 15.03.1995 on the basis of complaint of 1 Kumari K. Rani, D/o. Krishnappa for the aforesaid offences against 14 persons. It is alleged in this complaint that grand father of the complainant Gopalappa has three brothers and last son of Gopalappa was Bachappa who was h_awrir1g_s.even children by name Venkateshappa, Nagappa,» Munishamappa, Lakshrnana, Srinivasa ;anc1{j~shekar. _1»I¢=;:--._ grand father Gopalappa and Bach__hap'pa:'ar'eliving' separéictely . and her father is having twiogrnalefchildrenand..tWQ_:3femalcf' children. The complaint is thereldest daughter and she has stud:iled"f'u'p.::r.0 w'as'wuflrorking in the house after completii).g her alleged in the complaint that on O5.()3. 1S§95fa"t am. the Survey Officers had come Gram Panciiayath to survey and measure the lands and ' village. One Krishnappa and Bill Collector "ocpa1ap-fig another person had come near the house of the cornplainant at 11.00 a.m. and they had started if measuring the land of Venkateshappa. They have come to fimeasure the house of the complainant. At that time, the father of the complainant requested them to measure the house. At that time, the accused persons objected for measuring of the house stating that there is a case " pending against the said house and therefore, the.-yy.hadj----.5&;.afi.olus objection for measuring the house. Thereafte:r.gt'he'--Survey. Officers who had come to measure the.h:ou's.e1 left tlheii'-place.' It . is in the complaint that ther-e_afterl' the Acc:.1s'efdvN_os._}i to mentioned in the complainltfltcvame nearflto the place of occurrence holding chain and hand bomb. They assaultedH_compl.a,inanifsVhfather Krishnappa. The accused '}LriVshnappa by means of knifelon fell down. The uncle of the comlflainant assaulted by Dhanegowda by means ofklriifego_nAAhis'~~--sltomach. Kenchappa also fell down. hlereafftevr thelllcovmpiainant and others went near the place ' gland both Krishnappa and Kenchappa and brought hinside house. At that time, the accused Dhanegowda Bhagyamma on her right hand, Nagappa assaulted 2 Venkatamma by means of knife. After that, Nagappa throw hand--bomb. Due to the blast, Nagappa had sustained l bleeding injuries on his thighs. At that time, her uncle Sriramappa also sustained injuries by bomb. Srinivasa and Lakkappa have assaulted the people of complainant's_side by cycle chain. Govindappa and Anjanappa injury by cycle chain. Dhanegowda has by knife. Gopalappa also fell dovvh. tell i' down, Munithayamma came _and assau1ted,o'n.the of Gopalappa by legs. Lalithaifiina alf1d.l&:SuVinithramma by holding clubs have vassau1t_;ed_Ajnjanvappa and t}ov1'r1dappa. Bhagyamma assaulted clubs on his head. Hence, all of gl:oldin§'llclub_s:.fdin their hand have assaullted'-the is dalsolflstated that at the time of incident; .Sui1andanil1n_a',t'---Sltzashikala, Bhagyamma, Renuka, Jayanthamiha yaIv1dAA~\lei~"-Jziatamrna have also witnessed the A ..... .. 'V the basis of the said complaint, the police have condticted investigation and filed charge sheet against x the acciised. The accused were arrested and in View of the lstatement of PW1 and other witnesses, the Accused Nos.13 ___and 14 were also added in the charge sheet with the aid of Section 109 of UPC.
6. A9 -- Bhag/amma being a juvenile,4,aVt~s'ep_arate charge~sheet was filed against her and A14 and A5 died during trial. Hence, Al to A4;i-;'X.t§::'to 'Afs,4.A:o' A13 faced the trial.
7. The trial Court..:'framedV' the charges against the accusedzj, A-1 to 8; with absconding accused__no.14_.an.d:=.A~;-9 "on 15.3.1995, at about~'1'EeAp:.f.\'M, Eat Nallappanaha_lli, within the limits of Maiuf themselves into an unlawful assem'bly--,w._ object of which was to commit "muu'rder' s / 0 Gopalappa, Kenchappa s/0 _ Gopalappélg. anud'~~-cause hurt to C.W.4 Aswathappa, . it C.W.2§" V-V,evr__1__1ga,tamma, C.V\/.26 Bhagyamma, C.W.27 E""'tCp}oyin,dappa, C.W.28 Srirama, C.W.29 Gopalappa due p"rop'e.rty dispute and thereby they committed an drfgeneé punishable under Sec. 143.
Secondly, on the aforesaid date, time and place 'ub;eing the members of an unlawful assembly and in prosecution of the common object of such assembly, accused committed rioting, and at that time they were armed with deadly weapons like, cycle chain, clubs, and dagger, which weapon if used as weapon of /%--
ll} offence likely to cause death, and thereby V~tl'i-ey'-shave committed an offence punishable % Thirdly, on the aforesaid date, time lpiace,' the accused being the members *7:i;:~ .l'uril.awfull'; it assembly, and in prosecution ,oftl1el'comirion Chjéégi' of such assembly, Accuse_d--9 and i0 assaillteldzwiththeir hands to C.W.4 Aswathappa, A-4,' 7* ..a_r1,dlllltllassaulted with hands and legs .g25_vVenkata,mma, and A--11 and 12 caused C,g;W.29»Ciopalappa by stamping with legs, and thelrebyjl an offence punishable. w sec 49.
theaforesaidwsdate, time and place of an unlawful assembly, [and inlfirosecution' of the common object of such as.sembly*,-- .. VA-S voluntarily caused hurt to Krisltnappa clubs, A-1 voluntarily caused hurt to .I§1ishna15p'a----~b~y" stabbing with a knife on his back, A-3 .,Vv0lu,r_i'tai'ily caused hurt to Kenchappa s/ o Gopalappa ' 'V-.l§y,,vgsta,bb'ing with a knife to his stomach, A-6 and A-8 Voluntarily assaulted Kenchapa with cycle chains, A--3 it .. yoluntarily caused hurt to CW4 Aswathappa with a knife, A-9 and 10 Voluntarily caused hurt to C.W.4 by assaulting him with clubs, A-4, 7 and 10 voluntarily caused hurt to C.W.25 Venkatamma by assaulting her with clubs, A-3 voluntarily caused hurt to C.W.26 Bhagramma with knife on her right hand and also caused hurt to C.W.27 Govindappa with the knife, and K' x?
also caused hurt to C.W.29 Gopalappa by stabbing his stomach, and A-2 voluntarily caused hu1'tt..to-__C;W.28 Srirama, by Exploding a hand bomb, onlthe weapons which the accused used as wefapC,na.of offence' likely to cause death, tl1'ere'by'_';.tlhey hayeg con1mitted an offence puI}_isha.ble} unde_r"--sec.324=V:.irjw l' Sec. 149 IPC.
Fifthly, accused_y'~b_eing.V' the 'lof an unlawful assembly, andllliniléifosecutionlvof common object of such i_a*s.seInxbly,VA "th'eyz'have caused grievous hurt to Krishnappa Kyeflehappa, both sons of Gopalappa, byas'sau.lting:'thern clubs, and cycle 'stabbing knife, and when they lgwere Vi;al{efn.A:to.:lV£alur Govt. Hospital, for treatment, Krishinappa when Kenchappa was taken to Kolai' ._vGoy'e1*nment Hospital for further better _treatment",'l1«e~died, and that the accused committed _V:tl1eir:linu1*de1', and thereby they have committed an it 'v~ofl7epnc.e-plunishable under sec.302 r/W Sec.149 . . Sixthly, A--l3 along with A2 on the aforesaid , date, time and place, were in possession of country bomb, and supplied the same to the house of accused, without a valid permit or licence, illegally, and that thereby they have committed an offence punishable under sec.3, 4 and 5 of the Indian Explosives Substance Act 1908.
//"l
8. The prosecution in order to prov_efi'ts--.>.ca$e,:_.has examined 25 witnesses, got marked also produced M0,]. to M0. The:A4de.fencc.Ao£.tlie 5' being one of total denialrthéey h«aV_e*--got Ex.Dl8 being portions of 'lv'st:a't'ement'\ After hearing the prosecution the learned Sessions Judge was prosecution has failed to its v....IT.€E£~isonab1e doubt and acquitted' leyeiled against them. Hence the 3'3tateVlt1.:2;'sv revision petition is filed before. - PW} before police.
. , 9. " §V>W.1.fisA't.-he.' complainant -- Rani. She has stated V' _ Vthe..CourtVa's"per her version in the complaint that on 5 (:4-.f'lVr:1c_fii.a:lent i.e., 15.3.95 at about 8.00 a.m., CW3O to come to the village for measuring the house and 1andsv.AAt about 10 to 11 am, they have come near the house "Accused No.5 - Bachappa and started measuring the house. After completion of measuring the land of Accused No.5, they came near the house of the complainant. CW29 Gopalappa is the grand father of PWI. When officials were measuring the house of the complainant, the -- Venkateshappa came near the scene _.a.n_ud"VV.go'oj:ec.ted "for measuring the house. At that time, -- 7 deceased addressed Accused _No. 1 lanldtold tolwlhy he should object for measuringlV"elfithe hous_e&l"sii1ce:'.their house had already been No.1 that since there is court case in he is objecting to measure the surifey'«.ofiiciais,:fThereafter. her father by the Accused No.1 and asked house. At that time, there was 'altercjationshbetween Accused No.1 and the deceased On seeing the altercations, the Survey. officia1ls'vl--eft«'the scene of occurrence and left the ' later, the Accused No.1 came along with *.Ac¢uséd'l--".1'*;§'s.2 to 12 near the place and the Accused No.1 -- Venkateshappa took dagger and assaulted her father on his 2 right "shoulder. Accused No.6 -- Lakshmana brought cycle chain and assaulted her father on his back. Thereafter. her father sustained bleeding injuries on the shoulder and fell down. At that time, the Accused No.6 assaulted her father by means of cycle chain on his back. 'I'hereafter,.'_A'whieVi1,_her uncle by name Kenchappa was standingV__n'ear'h.erl.' fa.th4er.""_._ Accused No.3 -- Dhanegowda assalulbteri ti. stomach as a result intestine of Kenchappa."_lha's"comeeout and he fell down, at that Accused No.7 -- Shekar Sumitramma assaulted CW26 by her back. The Accused N by knife on the right for{:ain_:._V injuries. Soon after, CW25" Govmdappa, cw29 -
Gopalaptza, has come to the scene of occurrence. 'Atl:v'thatu the Accused No.2 Nagappa CWé5"by~means of knife on her right shoulder. ' ,.'l'h--e assaulted CW25 by means of club on her "thighs.A"llhe..Accused No.3 -- Dhanegowda assaulted PW29 Gopalappa by means of knife on his lower stomach and 2 iclaused bleeding injuries. The Accused No.4 --~ A"l\/lunishamappa assaulted CW29 by means of club on his two it "legs. Accused No.10 -- Lalithamma and Accused No.12 -- Munithayamma have kicked Gopalappa, her grand father on 9- /Q his back and thereafter, he fell down. The Accused No.3 -- Dhanegowda assaulted CW4 ~«~ Aswathappa by means of knife and caused bleeding injuries. Accused No.8 -~ Srinivisa assaulted CW4 -- Aswathamma by means of cycle'*Vcfh.ai'n on his back. Accused No.5 Bachappa and Bhagyamma have assaulted CW4} by mea.nls'o'f:'clubsV'_'on ~ by back.
9. The Accused No.2--...;"P>l,aga;l.)pa. bomb by bitting the same by mouth throwntotzrards roadin infront of com}i.lainan.tl's"lhouse"and, the same is exploded and the pieces ofithe sainellhas caused injuries to face, both eyes and hai;1ds,of lcom:_1jlaina.nt's uncle CW28 -- Ramappa. Alter th"e.__bomb, the Accused No.2 was trying to escape . 1'r"orn the~«.scer1e*"of occurrence and as he ran, he fell down in a drainage -eliannel and at that time, the bomb which was in his pocket has also exploded and he has sustained injuries A' thighs. The above witness is PW} before the Court. _.:This PWI has been thoroughly cross--examined by the defence and it has been elicited from the mouth of PW}. that there were Kong standing disputes between the;"d'eceas:ed;_.and accused side.
10. PW3 -- Ashwathappahiisidari 'He is. has also spoken regarding the incident as narrate-'d Similarly PW5, pws and"'1Vs.s:i§w7 by--- «"'s£ifamappaV, Govindappa and B'hagyarI"1rna'vs.:':' respectiyely' are injured witnesses and they the Court and have ciearly, by the said accused ' these injured eyewitnesses, the prosecution " PW2, PW4, PW8 and PW13.
theyltarei nottinjured, they are eyewitnesses regarding it jthje iricidentt PW2, PW4, PW8 and PW13 have also ._ qCdaL€gVvor1E'ca_1lyt,.attributed overt--acts in respect of Accused in the same manner as deposed by the injured V as witnesses PW3, pws, pws and PW7.
12. So far as other witnesses are concerned who are examined in this case, PW20 -- Dr. K. Srinivasan has examined the injured-- PW6 -- Govindappa and has found \-
simple injuries on his person. He has also exa:ninv.:¥:d.. -- Venkatamma and PW3 -- Ashwathappa CW29 -- Gopalappa and PW? antzliisssued '* wound certificates as per E":;s_4.P1O«"to the injuries sustained by theseliindiuredl PW2t) as simple injuries. it it i V
13. PWZO -- conducted PM examinatilernron as well as Keneha Ba and lhas is's{1'e,d' Post Mortem examination re orts marlged EXP} 7.
" PWZO the death of the deceased --
Krishnappal'is._V_Vhomieida1 and the death was as a result of ' VpVxeriphera.lA'circulatory failure due to haemorrhage as a resuit ._ of The death of deceased -- Kenchappa is as r'esu1t._"of'shock, massive haemorrhage due to injury to vital .. organikfiidney.
15. PW21 is the PSI who has recorded the statement of CW5 and CW29 when they were taking treatment in Victoria Hospital, Bangalore. PW22 -- Ramappa is ASI. He has registered the case on receipt of complaint 1 at 1.00 pm. on 15.03.1995 and transmitted§l.:f..lF'IF5§[jto jurisdictional Court. On receipt of the inforn1atio'_n thiatortel of . the injured died, he has requested t:hte..court to"'ad'd:"tSec:i;ion 302 IPC in the FIR which h»as..._alrealdyl?3een es'tih;hi.tfi¢c1"3thttht§th Court. He has recorded thelstatement' l lwitnesses and prepared the spot mahazar .has._ the articles as per Ex.P2. He further handed to the Inspector ofPo1ice.
16. -- Alplfl-'*s:~:~r1_p evidence on record the learned 'Sessions found that the evidence adduced by gtlie. prosecution not sufficient to hold that the accused «.1flave the murder of Krishnappa and Kenchappa 'V artdx all the accused of all the offences charged a"gainsjt Hence, this appeal by the State. Heard Sri G. Bhavani Singh, learned SPP for the l'_llState and Sri AB. Patil, learned Senior counsel for the Flrespondents and Shri K.S.N.Kamath, learned counsel for Petitioner in Crl.R.P.No.61/2004. ' //'-
18. The learned counsel for the respondents has filed an application U/s.39l of Cr.P.C. seeking permission to produce additional documents and getting the same.-marked before the Court. He has submitted that the registered case against the prosecution witnessegs' a case in Crime No.11?"/1995 for offence ' s. oi' IPC for having caused injuries to_"t~he la~cc'u_sed:
produced certified copy of t1ile"'E..I.R. and that!' four accused namely A3, and ..A.2«.h_avei§ sustained injuries andeproiduced"around. -certificates of these accused. _ , Heard. Sri (3'j'l3haVani Singh, learned SPP on the ,.
filed 'by------tne learned counsel for the respondents C since there is no objection for marking 'the' said 'diocrfirnients and admitting the material in evidence, the application filed U/s.391 of Cr.P.C. is allowed and the ido'e.uments namely FIR in Crime No.112/1995 and wound Ahcertificates of A2, A8. A4 and A5 are taken on record as evidence in this case.
20
20. Sri G.Bhavani Singh, learned SPP subinits.,_that in this case there is clear and cogent evidencef_:su}$porte€l__byv all the witnesses namely PW}, PW2, PW3;"PW§},. :PW5._P\§V6; , PW7, PW8 and PWIS who have=__ given flcllear ..picture,___o£ :_t}l1e l incident on hand. He has='fu_rtl1er"Astibrnitted oil"
Witnesses, PW3, PW5, PW?' jar'e injured eyewitnesses and Pi')_li/V2.3. ,APW_=i«,VlA"'PW8 and PW}.3 are eyewitnesses to the incident. out of the said Witnesses are lno:t"re1a.ted to other Witnesses and this, PW3 is also injured witness and tendered by these witnesses as aforesaidlc2ea1*lyVgoes_ to"°show that all these accused persons ' _ liélle part 'irrthe incident and have committed the acts V persons of the deceased Krishnappa and :clHe further submitted that FIR itself contained an avergnent that A2 ~ Nagappa while running away from the jsceane of occurrence fell down into drainage channel and ifthereafter, due to explosion of bomb in his pocket, he has suffered injuries. He submitted that under the circumstances though it is brought out that there was age vs /X 21 old dispute regarding property, the incident Therefore, the entire evidence may into consideration for the purpose Iof 'resp'ondents~ ' accused in the case. He submits the orderloi" acquittal,' passed by the learned Session.s:tTudge it is iritaccordanee with law and is not Under the circumstances,' he '«V3.CCused may be convicted aI1d:««£.senter_1eed for which they stood chad R" V. t It 2}_.-- 'i€a1"anth, learned counsel for the complainant in'--Crl.VA'F<..]E':'.,'1'§.o4.t31/2004 submits that there is no discrepancy '"in__VVso fafi." as assault on PW8 is concerned. He submitted that the evidence produced by PWZO re-_garding_ injuries on the deceased persons are caused by cyc1e..chai1i. Therefore, under the circumstances, he submits ., that "the order of acquittal deserves to be reversed and lb 'A.V_V'rcspondent may be convicted.
22. On the other hand, Sri A.B.Pati1 has submitted the following points:-
ll 22 There is absolutely no explanation regarding the injuries caused on the accused persons namely A2, A3, A4 and A5. The prosecution is silent regarding the manner in which the accused have received injuries in the incident and indicate that the eyewitnesses are§"n'o't«..speal«fifig truth absolutely. In View of the ~.o}d:.A_dif:f_eren<ceg between comp1ainant""'and {the jaccuseds, he ' submitted that the ocularevidence::tcndei=ed7lby the prosecutiongdoes not Qualify » ;
In the light of the'-abo,ve, it is_sub."inittvedVlthat the order passed by Atheijlowerp Court' does-'3 not suffer accordingly, the appeal ma3'fL~'eV disVmi__s'se'd..
g b He further lisubrnitted that in View of the evidence it" 'P'N2.2'-. "read with evidence of PW1 -- _ complainant and other evidence on record, it is clear that there is improvement in the version of 2 it PVV1 and other eyewitnesses in general so far as Bovert acts are concerned. He submitted that the Injury sustained by A2 -~ Nagappa has not been properly explained by the prosecution. He further submitted that the complaint in Crime No.1l2/ 2005 given by the accused person indicates that four persons of accused side are injured. However, in View of their custody, they could not pursue 'B'~report. However, he w //'I 23 submitted that the accused have suffered injuries. In View of the same, it» is argued that the prosecution come tout' T with clean hands. He :_furthei=._stibmittedfthat near the scene of "*occurreI'1ee, though;
prosecution cas'e.:.g."s,tates *-that_"'.=Kr'i.shnappa _. deceased has sujstained'--~heaVya ble.ed.ing injuries, no other mentioned in the spot mahazar case of the prosecuti§o'n.:H'e s.ubi.:iii_tgted'f'that PW22 has mis iead;jVit1rie*vCouI't. byplroducing the entire material 1 o1_1V.»'_record_,Vléjriiii"overall consideration of the this_,H"h'e submits that the evidence 12 shows that A3 and A5 has »first-- s'1"1s'tain'e.d' injuries. Thereafter, the incident hjasiihapipened. Therefore, the prosecution has su}i5p1ess'ed very genesis of the incident. In this '..:'i2'iew of the matter, he submitted that FIR itself indicates that there is verbal altercations before the injuries sustained by A2 and A3. In that view, he submitted that the order of acquittal passed by the learned Sessions Judge does not call for interference and the appeal may be dismissed.
N /X 24
23. Sri Patil, learned senior counsel in of his submissions has relied upon the following --1-
1. Ram Narain. Jaggar '-others, Vs. The State of Punjab:;'reported_yiI¥1l V 1727 -- Appreciation of eviLienceA'-- injuries caused"by lethal weapons -- prosecution evi.dence{_'in.c0nsistent' with medical evidencelkand that 'of::ba:ll1st1c expert - accused are entitled t.o"be'a.cquitted.
2. Soundarapandi state reported in 1933;crs~51;;J. 1199»: Eviden'ce.Act (1 of 1872), Section of ;--prosecution U/s.302 of IPC --
injuries".a1legedly'ca,used by aruval -- medical evidence Atoutally in.corf1p1e=te_"wi'th oral testimony of eyewitness -- _ medical officer very assertive in his view that injuries could It 1'I€{Y§'W_b€€I1 caused only by any stabbing instiiument and not by weapon like aruval -- cannot obtained by calling some other more cornpetent and experience expert ~-- held, evidence "of "eyewitnesses cannot be relied upon ~-- accused was . "entitled to benefit of doubt.
3. Appanna Yellawwa Madar and others Vs. State reported in AIR 1956 ----- Born 471 «-- where the eyewitnesses for the prosecution though unsophisticated were found clever enough to make 25 improvements on the points whichgltthefiijv--._thc:-ugh material. it is very serious infirmity "inf Kat murder case and if such d.irec»t.4eviCIence'is'4 notvgrhollyt j satisfactory, the subsidiary Y"-thfi prosecution relies, viz_., the discove.rv.of ' the axe}, however suspicious, cannot cure 'the'in:iZirrnr'pty.W
4. snags: n?ird hili:i:azid*.rsaraa Vs. State of Maharashtra repotrteztiifiivx SC 1622 -- Evidencteiitiact 3 -- interested _evidenc1e;z of ~ close relative of victim 't€fid.ency"ittofgeiiaggerate or add facts -- fcouit examine their evidence with great care
7.an*c1'cau't1oVn._ 2 V' Singh and others etc., Vs. ;p_S:tat_e oAiA'xBi--}:«ar reported in AIR 1976 SC 2263 -- _rn«u1'd:er case -- non explanation of injury sustained by it inference to be drawn.
. In a murder case, the non--exp1anation of the .. injuries sustained by the accused at about the time of occurrence or in the course of altercations is a very important circumstances from which the court can draw the following inferences:--
(1} That the prosecution has suppressed the genesis and the origin of r-
//5 26 occurrence and has thus not pres.e_nte'd_'the Version;
(2) That tl'1€:'\7l'7A'l'lC1'1€-S$€'$ 'denied if' the presence of inju'riesf"ori the A}:-erson'l_i"oflf'the accused are lying on theinost n1aterialV_p0ii'1t > therefore their evidence is unrel'iab1e;fl7_ (3) . lcasffip there~--.is/Ia defence Version 'l._explair1s;~l injuries on the persons of 'rendered probable so as to throiw dQ1lV.bt'Qrj~,t_l1eV prosecution case.
siateksi' iiafnaigaka Vs. Siddegowda and I'*o£herg;iv:;e§£g:%te_§1~iii IL1§"i999 KAR 3373 M criminal :trial?-- in '1nfu.rderhlcase__-- severe injuries were found on three accuseaci} the-.prosecutior1 witnesses suppressing . this fac_t --'~effect -- held ~-- unexplained severe injuries this caso~------ori Vital part) on the person of accused _Woul.d"indicate that the genesis of the case has been suppres-s.e'd.
"V it 7. Rajendra Prasad Vs. State of Bihar reported in 1977 Crl.L.J. 613 -- When the trial Court. with full View of witnesses acquits an accused after disbelieving direct testimony, it will be essential for the High Court in an appeal against acquittal, to clearly indicate firm and weighty grounds, from the record, for discarding the reasons of trial Court in order to be able c» /2 to reach a contrary conclusion of guilt ofWthelp'a--c'c.us«ed. The High Court should be able to point judgment that the trial Court's reasons:~are.:palpablyD'V. and unerringly shaky and fits. -.reas.onsh are ' demonstrably cogent as a rule .VoI'~appre:c'iation of evidence, in an appeal agaisnt VacfC;_uitta«l....yIt--*is not legally sufficient that just possible for the High Court to take contrarytvietvlablout creldilbility witnesses but it is absolutely the High Court convincingly Well irnpossible for the trial Court ;to ifeiect fl'1€i=i1' testi'rn:on'y=. . . llll " :7'f'*'iari'?3ll'NaI£l.l.ill'Vitji and others Vs. State of '=._Gujai-at" i-«§p.§rtgai.::r1----_A'iR 1970 so 219 -- .{A) 'Crirninai--_PLC(1898], sec.-<l23-- Appreciation of . , evidlencle appellate court - evidence of prosecution j2vi'tness 'truth and falsehood not separable -- entire _ evidence has to be rejected -- decision of Gujarat High 1 ~ Court - . reversed.
. {l3} Penal Code (1860), Sections 149 and 34 and if , and 304 -- free fight between two groups of persons -- injuries sustained by persons of both groups in course of such fight -- death of two persons -- only persons found to have inflicted injuries can be convicted for the injuries caused by them. Where there was melee at the time of the incident and two groups indulged in a free fight 28 resulting in injuries to persons of both:V~'groups'.I'alnd death of two, if the court comes to the the injuries sustained by _the.__perslons"*vvere' in the course of a free fight, then only.-those proved to have caused. injuries or death can be lhelnrp guilty for the offence individually ll
7. As Inentionedli'e.ar'lier boti1.:the_t;rial Court and High Court have c--om§pA1Vete_iy_irejected the testimony of PW6. Hence the -Ipros'ecutionV"case'_j.entire1y rests on the testimony believed by the in irngjortantlllrespects. It came to the lconiclusiolne "not truthful witness. It V.rdp'i1redii:thatf:.;his"«versionhlasto the incident is grabled lone 'suppressed the part played by hirnplland 'others side. But yet the High Court
-- , evidently inhfluenced by the fact that two persons had been killed vd1..1ring the incident undertook a salvaging _operat'i~--on in an attempt to fish out truth out of the if .o-faialse evidence given by him. In doing so, it Went, 'in search of some corroborative evidence. it , According to PW5, after the occurrence, he ran to the house of Kasalsingh, PWIO and informed him about the occurrence. The High Court thought that to the extent the evidence of PW5 tallies with the information given by him to Kasalsingh the same may be accepted as true. But yet the High Court in many respects disbelieved the testimony of PW5 even it accorded with F"
29
the version given by him to PW10. It conclusion that PW5 did not give a fu'll..:and. it version of PWIO. In particuilanyit that.'_:whi1e informing Kasalsingh about incidentfi F*'i'fv_"
deliberately suppressed the partllplayediéy péprsonsdii *' on his side. Having comehto the c.onc.l.u_sioi2, that right from the beginning a"di.storted version of the incident, not right in holding that any portion of .can be relied upon merely because his testimony in the version' by him to PW10.
It is truieflthatl' thelcourts have to separate ytthe 'truth where the two are so V:interrriing1ed..p:lasfil'to:VV"make it impossible to separate them,»the'v.evicl'ence_has to be rejected in its entirety. ..,The 'u'Higl1~.vCou1'ttw.over looked this well accepted p_ri11ciple.V'Ifwe« 'reject the evidence of PW5, as we think .we_sho--u_ld, the prosecution case must be held to be unstibstvantiated because there is no other evidence to it. Whatever other evidence was there, it has it .. been rejected by the trial Court as well as by the High Court as false. In this view, it is not necessary to go into the question whether Kasalsingh's evidence comes within the scope of Section 157 of the Evidence Act. V' 30
9. Akojam Ranbir singh_;V~~~~-vs. Government of Manipur reported V' 2191- ,8--_ c M .q __ fl (A) Criminal P.C. (1898),-~As.éctia;1-4'23':l[flapp;a1 against acquittal ---- finding of acquittal on 'proper -' appreciation of evidence.f5"hqigh co1irt«jks:':1olt:vjustilt"ied interfering with finding...cifimi11.a1 appea,1"ca.se No.2 of 1968, D/- 11~3--A--1._9f71 Reversed.
Whether the of by the Sessions Judge 'phased "appreciation of the evidence =t:he is not justified in setting--i:_it;.'_ aside._V'l'aipid convicting the accused even V'tho'ughif,twoffdifferent conclusions are possible on the basis of 't1fie.g4ltma'terial on record and the evidence is sufficient"i-- to} create some suspicion about the comp'liC:ityV..of accused in the crime. Criminal Appeal Case------110.2 of 1968, o/- 11~3~«1971 [Manipur), _Revers'ec_1.
Swaran Singh and others Vs. State of i.==urij§ibV reported in AIR 1976 so 2304 » (A) Criminal PC. (1898), Section 423 W Appeal against acquittal ---- Finding of fact -- Interference with -- Perrnissibility.
The law only requires that the Appellate Court, in reversing the order of acquittal, should be slow and circumspect to disturb a finding of fact, but if it is of ,.
31 the opinion that the finding of fact is W_rj'o'ngf borne out by the evidence there is no limitation" on V' power to interfere with the order' of 974x ' SC 606, Rel. On.
Held that the view taken byV"Add;:ti¢5n¢urg Sessions Judge was p'erve_rse and against the weight of the evidence le.dlllbj,I_t'l1e prosecution, and that the High Court entire evidence, has given due regard tloltllie of slowness in disturbing ..a and after having considereddthe~.sanle_:.ha.sl the conclusion that no otherviewvrasptissible on the evidence. '.vv24.__ . Al3cfor_e"'a.pp«re'ci.ation of the evidence in this case, the following plointslare rnind:-
'V 1"; .__l'"ln C' an appeal against acquittal, the Lfixppellate W Court would be slow in reversing the of the trial Court unless miscarriage of r thereby ensued.
The Appellate Court would not interfere " the order of acquittal even if based on the evidence on record two views are possible and the view taken by the trial Court is equally plausible.
3. If the Appellate Court finds that the appreciation of evidence by the trail court is Without evidence or capricious or against the interest of 32 justice, then only the appellate Court woux1g_.l.o reverse the order of acquittal.
4. If after reappreciation of'the«.evidenc--e, the' Appellate Court independently_:pf1r1ds of acquittal is not in accordaancepxwith' law conclusion arrived at "the trial VCourrt.Va19e"not 'based. ' on correct appreciation oi'=«the_evicl'ei1cel on record, and the incident carihat be? the guilt of the accused isa..tiotall'virrinconisistent with the innocence. of cases only the Appellate'Alflourfwduld order of acquittal.
Having se'ttljedV"'principples of law in mind, we V'\Xrou1d.Vl£ke reconsider thevevidence on record. ' PW'1f'j--»"the complainant. The incident had happenedabctweenlllll" l2 p.rn. on 15.03.1995 and the corriplvainant haspreaclied the Malur Police Station at about .A distance between the police station and the ~court krns. When we see the contents of the FIR it is lseenii that the complainant ---- PWI has named all the 'persons i.e., A1 to A12 in complaint and also attributed "I.sp'e'cific overt acts against the accused. The said FIR has it " "been registered at about 1.30 p.m. by the police and dispatched the same at 2.15 pm. and the learned Magistrate 33 has received the same at about 2.30 pm. Havingjiiegacrdavpéto these facts, we are of the firm opinion absolutely no delay in registering; the4coniplaintj;v»blefore police station by the complainant-,and'ialso'»trans;niss'ionVof FIR to the Court. The ver::'io'n__ of in f'E§ll{.:._'specilically<I' mentions the presence of lethal weapfolns. band? also the presence of explosive Vsublstaificesy hands of the A2. It is also specifically.averre_dw--in the that while running away from Hthe f3'Ce_11e"0f1Off€Il(fE;.Vfllelméfiplosivfi substances found~in"the;possessioli1.ofA2feXp1oded as he fell down to the drain and The evidence of all the injured witnesseslnamely PW6 and PW?' also specifically states _povert"'acts..by each of the accused. It is also seen ' PW8 and PWl3 are also eyewitnesses to the '1i1ci*dentL f«.1"ij'hle_9a1'Vevidence tendered by the injured witnesses cannotvlbehlightly brushed aside.
26. At this stage, we would like to note that no _Vv_Mwh€re in the prosecution evidence, it has been brought out that any of the injured witnesses were armed with any weapons at the time of the offence. On the other hand the 2- 34 possession of weapons of various description inc3uding__'DLa1_{u. chaku, sticks and cycle chains etc., have ..beer..1_ speciiicaiiywp mentioned by at} the witnesses. Unde_rH'thVe"s_e 'circ_uir1stanc_es, we are of the firm opinion that the persons in the" op have taken part in the inciden't*o:n~the date of thefloffence and have caused death o'i'~~..two_«"hperhssoiis'hand injtiries on four persons.
27. regard nhature of the injuries and the opinihn has conducted the PM exaniivnaticriivep iof'thevv..opinion that the death of deceased Krishnappa and is homicidai in nature. Therefore, tWe..haVe' no hesitation to the come to the "that the death of both the persons and aiso the p PW5, PW6 and PW? are the direct result of the acts the accused and hence, they are liable for the .A said offences.
28. So far as the non--exp1anation of the injuries .:%caused on the accused is concerned, the FIR itself speaks of injury on Accused No.2 -- Nagappa. So far as the other t~ //'g 35 injuries on other persons is concerned, the police..hf:1ve'fi1ed a 'B'--report, which has not been persued by it hence the Magistrate has accepted the saIne,:'l*IenVce;" the accused cannot now urge the said Contention this stage in.' this appeal. Even 0therWjSe"--.'.,fii8, alleged' other accused could be due top_bI11shin*g.:'of vwsaponsvvof the accused themselves inter se i and jnot erode the trustworthiness _the§;'prosecution'_witnesses.
29. 1 far offences committed by the is mentioned in the FIR by PW} that immediateiyafter buwey Officers left the scene of occ:tiI'1'ence,d accused had verbal quarrel with the ffrishnappa. Despite the fact that the accused were vveapons and the deceased party was un--armed, in'~view°of quarrel with regard to the property and also in view of the fact that there were age old enmity between the it 'A._a'ccused persons and the deceased and their family xlmembers; the offence committed by A1 and A3 cannot be said to be done with an intention to caused death of the deceased. Under the circumstances, though no motive can //"T 36 be attributed to the accused persons, the very natrl.ire_'__of' the weapons used by A1 and A3 and also explosive used by the A2, it couldjbe fivglli tliat had the knowledge that the;a_ct would be ca}-.isin'gd'deijith~ of Krishnappa and Kenchappa. these.circ-"umstances, We are of the opinion thatijjthpe the accused would fall U/s.3o4 Partal'-loll the offence of causing injuries, PW7. However, though thiereufs use of explosives by A2, the charge sheet against A1 to A12 underlKthe.l_ Substances Act. Hence, they cannot beheld ,gui1ty_tlof~.--the said offences. It is noticed that th'e'3"¢.charge ufide1--~..s~.«e Indian Explosive Substances Act is ' .ro[ad.e''''against A13 and A14. A14 is absconding and is .'n.ot'befor'ef Court in this case. Hence, we are inclined to grant the benefit of doubt to A13, since, his name does not 1' lflf ifigure in the complaint lodged by PW1.
30. In the circumstances, we are of the opinion that A the appeal filed by the State deserves to be allowed. Accordingly, A1 to A4 and A6 to A8, A10 to A12 h-
37 {Respondents Nos.1 to 10] are convicted for the"-.o;ffe'nce punishable U/s.304 Part--I r/w sec. 149 convicted for the offence U/s.324v;*/"w.----Secf:14tQll ' if the facts and circumstances of the casefwhere' two lixfes are lost in the incident, we areof the opinion _that l't3ie'''sentenceV ' of seven years of rigorous pAi.mp1Z"i«sonment"would meet the ends of justice for r/w Sec.149 of IPC. So far as" VoffencVe"'U::/:ViSec.149 of IPC is conce:med,«--Vwe 2Li_r_e;'.o'f th_&e" opiniojii that the sentence of one yearpvrigo1'o1i:s irn:prisoi1ernentf'Wit'hV' fine of Rs.5,000/-- would meett'hele_nds_ of the following ' " " ' - ORDER " The appeialvlis allowed in part. The Respondents No.1 if . A6 to A8, A10 to A12 before the trial Court} are fo'rv.*:the offence punishable U/s.304 Part-I r/W Se-c.1./$9' lPC and sentenced to suffer RE. for a period of .. sevengfears each.
Further they are sentenced to suffer R1. for a period of one year and pay fine of Rs.5000/--. in default to suffer SI. 5 //5' 38 for a period of three months for the offence punishable U/5.324 r/W Sec.149 of IPC. Both the sentence_s:es£1--a1E;.e'run concurrently.
The respondents are directedm to su'rrend_er'._'oef'ore the trial court and serve the sentenceflas"--herein'before or_iiered_.V in the event of their failure so," it 'that the trial court shafi execute the_Thefibai£ bonds of the respondents stand canceiiecii e. _ V v.»'q"Eie~gr;"1erkt§f"'aeqtfittaiAo'f"Respondent No.11 {Accused No.19;"bei7ore theijtrial' is gtonfirmed.
. sa/-.
Judge Sd/' Judge V " .. NM/Gps*