Karnataka High Court
Shasranappa S/O Siddaramappa ... vs State Of Karnataka on 26 August, 2014
Author: L.Narayana Swamy
Bench: L.Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 26 T H DAY OF AUGUST, 2014
BEFORE
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
CRIMINAL APPEAL No.2692/2009
BETWEEN:
1. Sri Sharanappa,
S/o Sidharamappa
Bhandiwaddar,
Age: 22 years,
2. Sri Durgappa,
S/o Hanumappa Bhandiwaddar,
Age: 22 years,
3. Sri Kumar,
S/o Durgappa Salmani,
Age: 25 years,
4. Sri Hanumappa,
S/o Sidhramappa Bhandiwaddar,
Age: 20 years,
5. Sri Muttappa,
S/o Rangappa Bhandiwaddar,
Age: 21 years,
6. Sri Basappa,
S/o Shidramappa Bhandiwaddar,
Age: 24 years,
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7. Sri Prakash
S/o Hanumappa Bhandiwaddar,
Age: 24 years,
8. Sri Hanamappa,
S/o Rangappa Bhandiwaddar,
Age: 20 years,
9. Sri Venkappa
S/o Hanamappa Bhandiwaddar,
Age: 20 years,
10. Smt.Durgawwa,
W/o Shidramappa Bhandiwaddar,
Age:Major,
11. Smt.Nagawwa,
W/o Hanamappa Bhandiwaddar,
Age: Major.
All are resaidents of Sarjapur,
Taluk Ron, District Gadag.
... APPELLANTS
(BY SRI. K. L PATIL, ADV.)
AND:
The State of Karnataka,
By Ron Police, Ron,
Represented by State
Public Prosecutor.
... RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, HCGP)
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THIS CRIMINAL APPEAL IS FILED U/S 374(2)
OF CR.P.C. SEEKING TO CALL FOR RECORDS IN
S.C.No.18/205 ON THE FILE OF THE DISTRICT &
SESSIONS JUDGE, GADAG AND TO SET ASIDE
THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 27.6.2009.
THIS APPEAL COMING ON FOR DICTATING
JUDGMENT THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
JUDGMENT
This appeal is filed against the judgment and order of conviction and sentence dated 27.6.2009 passed by the learned District and Sessions Judge, Gadag in S.C.No.18/2005. The appellants have been convicted in respect of the offences punishable u/ss. 143, 147, 148, 323,324, 504, 307 R/w Section 149 of Indian Penal Code and sentenced as follows directing the sentences to run concurrently:
(i) Simple Imprisonment for a period of one month and to pay a fine of Rs.1,000/-4
and in default to undergo S.I for aperiod of one week in respect of Section 143 of Indian Penal Code.
(ii) Simple Imprisonment for a period of two months and to pay fine of Rs.2,000/- and in default to undergo S.I. for two weeks each in respect of Section 147 of Indian Penal Code.
(iii) Simple Imprisonment for a period of three months and to pay fine of Rs.3,000/- and in default to undergo S.I. for three weeks each in respect of Section 148 of Indian Penal Code.
(iv) Simple Imprisonment for a period of fifteen days and to pay fine of Rs.500/- and in default to undergo S.I. for four days each in respect of Section 149 Indian Penal Code.
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(v) Simple Imprisonment for a period of three months and to pay fine of Rs.3,000/- and in default to undergo S.I. for three weeks each in respect of Section 324 R/w Section 149 of Indian Penal Code.
(vi) Simple Imprisonment for a period of two months and to pay fine of Rs.2,000/- and in default to undergo S.I. for two weeks each in respect of Section 504 R/w Section 149 of Indian Penal Code.
(vii) Simple Imprisonment for a period of two years and to pay fine of Rs.5,000/- and in default to undergo S.I. for three months each in respect of Section 307 R/w Section 149 Indian Penal Code.
2. The brief facts as narrated in the appeal are that a complaint has been made by PW-2 marked as Ex.P3 dated 28.5.2004 alleging that the appellants herein have committed the above offences. The 6 motive as per the complaint is that A-4 Kumar S/o Durgappa Salimani was due Rs.200/- towards coolie to PW-11 Shekhappa Venkappa Bhandiwaddar. On 27.5.2004 at about 2 p.m. Shekhappa Venkappa Bhandiwaddar & She khappa Tippanna Bhandiwaddar together went to the land of Kumar and claimed Rs.200/-. There was a quarrel, which was reported to 8 brothers of PW-11. On the same day, at about 7 p.m. 13 accused formed an unlawful assembly with intent to show criminal force, aimed with iron rods and sticks in their hands, came making hue and cry in front of the house of the complainant Shivappa, abusing in a filthy language, inflicted blows on the persons of CW.9, CW.4, PW.7, PW.4 and PW.6 causing simple and grievous injuries.
3. The prosecution in order to prove the guilt of the appellants examined as many as 13 witnesses as PW-1 to PW-13. PW-1 is 7 Dr.Prahaladmurthy, KIMS, Hubli, PW-2 is the complainant. PW-3 us the panch witness. PW-4, PW-5, PW-6 & PW-7 are the injured. PW-8, PW-9 & PW-10 are the independent eye witnesses to the incident. PW-11 is the witness who spoke on motive for the incident, PW-12 is Dr.S R Gargi and PW-13 is the Investigating Officer. Ex.P1 to P12 are the documents marked on behalf of the prosecution. Ex.P1 is the X-ray film, Ex.P2 is the wound certificate, Ex.P3 is the complaint, Ex.P4 panchanama. Ex.P5 & P6 photos, Ex.P7 statement of PW-9, Ex.P8 discharge certificate, Ex.P9 Discharge certificate, Ex.P10 FIR, Ex.P11 Seizure panchanama and Ex.P12 to P18 are the wound certificates. The material objects are MO-1, 8 sticks, MO-2, 3 iron rods, MO-3 to MO-7 bloodstained tea shirt, baniyans and sari. 8
4. PW-1 the doctor has deposed that on 28.5.2004 at 7-45 a.m. PW-5 & CW-4 were brought to the hospital. X-ray revealed fracture in left elbow, tibia and fibula on CW-4 and PW-5 sustained simple injuries.
5. PW-2 is the complainant. He deposed that Accused No.1 assaulted by club on his head and he suffered fracture on his head. Accused No.8 assaulted with club and sticks on his left elbow and on stomach. CW-4 suffered fracture on his hand and accused No.3 assaulted CW-4 with iron rod and CW-6 has been assaulted by Accused No.5 by using club on his head and suffered injury on his head, A-4 assaulted on PW-5 and PW-5 fainted, CW-7 has been assaulted by A-6 who suffered bleeding injuries on his head, A-7 assaulted on PW- 6 by iron rod and Accused No.12 also committed an offence of assault on PW-6, CW-5 has been assaulted by Accused No.9 by using club and 9 suffered bleeding injury, A-10 & A-13 have assaulted on CW-9 and CW-9 sustained bleeding injury on the head. CW-8 was assaulted by Accused No.11 and all the accused made attempt on their lives.
6. PW-3 is a panch witness to Ex.P4 for seizure of MO-1& 2. He has deposed that MO-1& 2 were recovered. He identified the signature. In the cross-examination he has deposed that he has seen MO-1 & MO-2 and police asked him to sign but he does not know what is written in it.
7. PW-4 is an injured. He has deposed that Accused No.9 & 7 have committed an offence of assault by using club on her head and also on hip and accused No.7 assaulted on right elbow and she suffered fracture. She has stated that her right hand had swollen and she was inpatient for one month. In the cross-examination she has deposed 10 that there was no rift between the accused and the complainant.
8. PW-5 deposed that on the said date, PW-11 reported that A-4 quarreled with him for having demanded Rs.200 coolie. All the accused were holding clubs and rods. A-4 assaulted him by using iron rod. He suffered blunt wound, he underwent surgery, there was bleeding from the head. He produced photographs as per Ex.P5 & P6. A-5 assaulted with club on his shoulder. He suffered injury on his head and bleeding from the head.
9. PW-6 has deposed that he suffered injury on her head and accused No.7 has assaulted her. She has been treated with 9 stitches. The wound certificate in respect of PW-6 is Ex.P13 which disclosed contusion on left elbow and right parietal region. The injuries are stated to be simple in nature.
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10. PW-7 is also injured in the incident. As per his deposition, A-1 has assaulted him. Ex.P15 is the wound certificate. The injuries are stated to be simple in nature.
11. PW-8, 9 & PW-10 are stated to independent eye-witnesses to the incident. PW-8 and PW-10 have supported the prosecution. They have given omnibus statement that accused persons have committed the offence. PW-9 has turned hostile, has not supported the prosecution.
12. PW-11 is the star witness for the prosecution case. As per his deposition, A-4 due a sum of Rs.200 towards coolie. A-4 told to give Rs.200 in the evening. Instead of paying the same, accused persons committed the offence. However, in the cross-examination PW-1 deposes that he had not made statement to the police, there was no altercation, he has denied the suggestion that he 12 had been to the place of the accused persons for demanding Rs.200/-.
13. PW-12 is the doctor who issued Ex.P8 & P9 pertaining to PW-2 & PW-4 respectively. Ex.P8 disclosed simple injury.
14. PW-13 is the Investigating Officer through whom Ex.P12 to P18 wound certificates were got marked.
15. The learned counsel for the appellants submitted that Se ction 149 of Indian Penal Code is not attracted in the present case. In order to constitute the said offence, there shall be every member of unlawful assembly guilty of offence committed in prosecution of common object. Here there is no common object and there is no motive except between A-4 & PW-11. In this regard, the learned counsel for the appellants placed reliance on (2009) 16 SCC 337 (K M RAVI & OTHERS vs., STATE OF KARNATAKA) & (2012) 12 SCC 657 13 (BHARAT SONI vs., STATE OF CHATTISGAD) where it has been held that mere presence or association with other members alone does not per se be sufficient to hold every one of them criminally liable for the offence committed by others unless there was sufficient evidence on record to show that one such also intended to or knew the likelihood of commission of such an offending act. The prosecution has failed to make out such a case as against the appellants.
16. It is submitted, as per the complaint made by PW-2 when PW-11 made demand from Accused No.4 for payment of Rs.200/-, he told PW-11, it would be paid in the evening. Instead of paying, the accused formed common assembly and committed the offence, from which requirements of Section 149 Indian Penal Code are not established.
17. The learned counsel submits, in order to constitute an offence under Section 307 Indian 14 Penal Code, the act alleged on the accused should be such that it causes death on the victim. There shall be intention or any such particular circumstance to cause death, is guilty of murder punishable for the said offence. In the instant case, no intention could be gathered by the evidence and material made available by the prosecution. The mahazar Ex.P4 is stated to be drawn on the next day. MO-1 & MO-2 were recovered which were lying on the roadside. PW-3 who is the panch has not supported the Mahazar stating that he has signed the Mahazar without knowing the contents.
18. The learned counsel further submitted that Ex.P2 and Ex.P8 & 9 have been issued by doctors PW-1 & PW-12. Ex.P2 related to PW-5 and Ex.P8 & P9 are related to PW-2. In so far as Ex.P12 to P18 wound certificates, the authors of the said documents are not examined by the prosecution. In this regard, relying upon (2009) 9 15 SCC 221 (MALAY KUMAR GANGULY vs., DR.SUKUMAR MUKHERJEE & OTHERS), the learned counsel submitted, in a criminal case, subject of course of shifting of burden depending upon statutes and or, a decision of the superior courts. Right of the accused is protected in terms of Article 21 of the Constitution of India. The procedures laid in that behalf, therefore, must be, strictly complied with. Therefore, Ex.P12 to P18 in the instant case, whose authors are not examined, cannot be relied upon. Hence injuries said to have been sustained by injured other than PW-2 & PW-5 are not supported by medical evidence.
19. The learned counsel for the appellants submits the motive behind this case has been suppressed by the prosecution. Earlier, the accused persons filed case against the complainants, which was registered in Crime No.54/2004 on the file of Ron Police Station for the 16 offences punishable under Sections 143, 147, 323, 324, 326, 504, 506(2) r/w Section 149 Indian Penal Code. In order to get over from that case, this false case is alleged. There are material inconsistency in the evidence of the injured witnesses and the wound certificates. Though PW-2 deposed he was assaulted by using clubs and rod, PW-1 doctor who has stated that the injuries are simple in nature. CW-4 is stated to have sustained grievous injuries but he has not been examined by the prosecution. The evidence of PW-11 cannot be relied upon to prove motive against the accused persons, when he says there was no altercation and he has not given statement to the police.
20. In the circumstances, the learned counsel for the appellants submits, the prosecution has utterly failed to prove the case beyond reasonable doubt. The court below has failed to appreciate the entire materials in a proper perspective and thus 17 committed an error. Hence the learned counsel prays for allowing the appeal and setting aside the impugned judgment and order of conviction.
21. The learned HCGP submitted to dismiss this appeal. PW-1, PW-2, PW-4, PW-5, PW-8, PW-10 and PW-12 and PW-13 have supported the case of the prosecution. The injuries referred in the wound certificates correspond to the incident and the overt acts. Mahazar has been drawn and the material objects have been recovered. The Investigating Officer PW-13 has been examined and the wound certificates are got marked through him. PW-2 himself is an injured and complainant in the case. The court below has properly appreciated the materials and has arrived at a just conclusion, which cannot be interfered by this Court. Hence the learned counsel submits to dismiss the appeal. 18
22. I have heard the learned counsel for the parties and perused the entire records. The question that arises for consideration is, whether the impugned judgment, order and sentence passed by the court below suffers from any illegality calling for interference by this Court? My answer would be in the affirmative for the following reasons.
23. In the instant case, PW-11 claims, Rs.200/- was due from Accused No.4 towards coolie. A-4 told him to come in the evening but instead of paying the amount, the accused have committed an offence. If at all, any intention or object of committing the offence is there, it is only between A-4 and PW-11. PW-11 has deposed that there was no quarrel between A-4 and himself. He had not demanded the said amount and there was no altercation between them. He had not made any statement to the police. The accused persons have 19 not scolded him for Rs.200/-. He has denied the suggestion that he had been to A-4's house for demanding the amount. This denial of PW-11 dilutes the case of the prosecution. Though appellants claim that there was no common object as to offence u/s 307 of Indian Penal Code but from the evidence of the injured, wound certificates and the evidence of PW-1 & PW-12 and Ex.P12 to P18, it is clear that the prosecution witnesses have suffered injuries. Merely because the prosecution witnesses have suffered injuries, it cannot be attributed that the accused have committed offence u/s 149 or 307 Indian Penal Code. In (2009) 16 SCC 337 at Para-10 it is held that:
"...The attempt to connect all the accused with the murder of the deceased invoking Section 149 Indian Penal Code on the deceased on his arrival at the place of worship seems to be far-fetched. Mere presence or association with other members 20 alone does not per se be sufficient to hold every one of them criminally liable for the offences committee by the others unless there was sufficient evidence on record to show that one such also intended to or knew the likelihood of commission of such an offending act. There seems to be no legally acceptable material to prove, in this case that all the accused acted as members of an unlawful assembly, and except that they were found to be closely related nothing concrete to join them to connect with the murder of the deceased has come on record to attract the application of Section 149 Indian Penal Code".
24. In (2012) 12 SCC 657 (Bharfat Soni etc., vs., State of Chhattisgarh, Para-15 to 19 read as follows:
"15. The purport and effect of the provisions of Section 149 Indian Penal Code has received the consideration of this Court on more than one occasion. Without referring to any particular or specific 21 precedent available on the point, it would suffice to say that determination of the common object of an unlawful assembly or the determination of the question whether a member of the unlawful assembly knew that the offence that was committed was likely to be committed is essentially a question of fact that has to be made keeping in view the nature of the assembly, the arms carried by the members and the behaviour of the members at or near the scene and a host of similar or connected factsand circumstances that cannot been trapped by any attempt at an exhaustive enumeration.
16. In Dani Singh v. State of Bihar (2004) 13 SCC the meaning of the word "common object" had been considered by this Court. The relevant part of the discussion may be summarized up below:
11.... The word "object" means the purpose or design and, in order to make it "common", it must be shared by all. In other words, the object should be common to the persons\, who compose the 22 assembly, that is to say, they should all be aware of it and concur in it....
12. ... the "common object" ofan assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident...
13....An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard-and-fast rule can be laid down 23 under the circumstances from which the common objecdt can be culledout, itmay reasonably be collected from the nature of the assembly, arms it carries and behaviourat or before or after the scene of incident.
17. In a recent decision of this Court in Kuldip Yadav v. State of Bihar MANU/SC/0390/2011: (2011) 5SCC 324 to which one of us (Justice Sathasivam) was a party, the principle of constructive liability under Section 149 Indian Penal Code had once again received an elaborate consideration. In paragraph 39 of the judgment it was he ld that:
It is not the intention of the legislature in enacting Section 149 to render every member of unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to attract Section 149,it must be shown that the incriminating act was done to accomplish the common object of lawful 24 assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object.
18. In para 40 of the judgment an earlier decision in Rajendra Shantaram Todankar v. State of Maharashtra MANU/SC/0002/2003 : (2003) 2 SCC 257 was noticed, particularly, the opinion that..."I" is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime."
25. In order to establish the common object or any assembly to commit offence for the purpose of Section 149 Indian Penal Code there are no 25 evidence on behalf of the prosecution. The parrot like evidence is of no use for the prosecution. PW-2 deposed that PW-1 reported him that there was altercation between A-4 and PW-11 and in the evening all of them came in front of their house and committed the offence. If A-4 due for PW-11, motive may be attributable to A-4 and not to others. In the circumstances, the legal requirement of common object, intention of an unlawful assembly is not proved by the prosecution.
26. The requirement of offence u/s 307 Indian Penal Code is, whoever does any act with such intention or knowledge of any such circumstance that if he by that act cause death he would be guilty of murder. The alleged act on the accused person should have been established that on such intention and knowledge to commit act of causing death. The accused No.4 as it is alleged by the prosecution, had assaulted on PW-5 on head. PW-5 26 has stated that he had been assaulted with iron road on his head. Quite contrary to it, the wound certificate Ex.P13 discloses that the injuries are simple in nature. In the absence of prosecution proving the common intention and materials to show that with that common intention they used criminal force armed with clubs and sticks and rods, it cannot be held that the accused are guilty of offence punishable u/s 307 r/w Section 149 Indian Penal Code. Ex.P12 to P18 the wound certificates whose author has not been examined cannot be relied upon as held in (2009) 9 SCC 221. Even in respect of other offences u/s 143, 147,148 and 504 the prosecution has failed to prove beyond reasonable doubt by placing sufficient materials. Therefore, the judgment and order of conviction passed by the court below for the said offences suffers from illegality and liable to be set aside. 27
27. From the evidence and materials on record, the injured witnesses have suffered simple injuries. Though Ex.P12 to P18 are inadmissible, the accused persons acts of assaulting which has resulted in grievous injury to PW-4 and simple injuries to other injured witnesses. Therefore, the order of conviction of the trial court is to be restricted to Section 323 Indian Penal Code and exercising power u/s 357 of the Code of Criminal Procedure, the appellants shall pay Rs.1,000/- to PW-2, PW-3, PW-5 to PW-7 and Rs.10,000/- to PW- 4 within a period of two months. Liberty is reserved to the State to move for recalling this judgment, in case the fine amount is not deposited by the appellants as above. Subject to this, the appellants are acquitted of the other charges alleged against them. The impugned judgment and order and sentence shall stand modified 28 accordingly. Bail bonds of the appellants stand canceled. Appeal is accordingly allowed in part.
SD/-
JUDGE akd*