Karnataka High Court
Raveesha vs State Of Karnataka on 25 August, 2010
Author: N.Ananda
Bench: N.Ananda
1. . Chikkananj aiah. IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 2573* DAY OF AUGUST 2010 BEFORE THE I-ION'BLE 1\/1R.JUSTICE N. . G "'2 CRIMINAL APPEAL N0;I824«,/.2_G.O3 , . G V BETVVEEN: Raveesha, - _v -._ S / 0 N anj aiah alias Mot1_ Nanja'i'a*h_," Aged about 25 Years. _ ;_~ A S/0 Nanjaiahalias Mibti ' I Aged about ' Shivanna., M .4: Aged_about'2f1Years,--.'V _ _' 8/ 0 Nanjaiah alias §»![QiiVa.Nar_1jaiah. Vishakaf2.tha,. G _ _ Aged about 19 Years',- 3/.29. Nanjaiah aEia§__M;oti Nanjaiah. . E'-Janj a1ia.s Moti Nanj aiah, ' .A,ged_ .ab_0'ut =70',.Years, r AS/,0 LaiejKa*panaiah. S.1a'iiVa'f:1ar'1j4aiah, Agedvabout 35 Years, " o Nanjaiah alias Moti Nanjaiah. All are residents of Dhannapura Village, Bihkere Hobli, Hunsur Taluk. ...Appellants'--c."~a. (By Sri.Kemparaju, Advocate for M/s.Lawrr1en's ' ' AND: State of Karnataka. By Hunsur Rural Police, ._ V Hunsur. _,_.R.es'pondent (By Sri.Vfiaya Kurnar Majage, This appeal is filed und'er't-section 3.74o(2}.Cr.P.C., against the judgment dated 2'?.1l,_2'0O3;._pass'e'dV by-.the I Additional Sessions Judge,_AMysore' in =S.C.i'€o'.-40,"19-:96, convicting the appellantswaccuasecl to 6"._fori offences punis.hable under sections 143, 147, 1-4--8Vand1fIl3_O7'1*,/_w 149 oi' IPC and sentencing them to undergo R.l.5 for.-3' nionfhsand 't0...l3ay_ fine of Rs.500/v each, in default to und'erg'o SJ. for_g1'5V days. for an offence punishable under section I431'/awfii149 farther sentencing them to undergo RI. for 3 nionths and ..,pay a.._f'1'nVe of j Rs.500/ W each, in default to undergo"._S.l.' for_oneeAo'.mont1<1 for an offence punishable under section 142? r/w 149 of'--lPC--,.___fufther sentencing them to undergo RI. for onexyéealiv and pay a_..fine of Rs.500/« each, in default to undergo S1. for one month for an offence punishable under S€ClZiO_§.'.'1 148 r/w 14.9 of IPC, further sentencing them to undergo for 2'-Years and pay' a fine of Rs.1000/- each, in default to yundergo SJ. foi=--._3 months for an offence punishable under section so? r/_w-.i_49 "of me. It if further ordered that all the sentences "shall run eon_current1y. A coming on for final hearing this day, the Court j deliveredvfiie following: J U D G M E N T
Appellants 1 to 6 arrayed as accused {hereinafter referred to as accused 1 to 6) » offences punishable under sections V ll"
30? 1'/W 149 IPC in S.C.No.40/199$, District 8: Sessions Judge at Mysore. V
2. Accused l to 6, PW1 lI--'W14l are-~ natives of Dharmapura village, Taluk. There was il1--w1'lI between ._accu'sed ' and PW1 8:
PW2 on the about 6.30 a.m., when PW14--Yalavamma to collect hay,._ "fonned an unlawful assembly, confronted and him with deadly weapons like choppers and such intention and knowledge that ifyvthey had caused death of PW1 and they guilty of an offence punishable under it section 3632' The first information was lodged by PW2~ ll""*._ChalVuVaraju at 10 am. on 28.08.1995, on the basis of Crime No.258/1995 was registered for offences 1\)' Cf _A.,.Q«\«'-C{l\'-
4 punishable under sections 143, 147, 148, 506 <3: 307 r/w 149 IPC against accused 1 to 6. PW1 was treated by .PW8-- Dr.B.T.Chandrashekar in General Hospital at Huns.ul_r,.._'l'i7he Investigating Officer visited the place of 1. blood' stained clothes of PW1 markedmas statements of witnesses, arrested: the zaccused"'-andgalso seized weapons of assault (1\/.{».'O,___1 tolM,C).6}. 'igcompletion of investigation, charge sheet agairxst accused 1 to 6 for aforestated offencesf"ge--
3. In order to bring guilt' the accused, prosecution e2:a1lrrirj;ed PW1 to produced documents markedkgas and material objects as per MO. 1 to M,Q;8, i;E'4}¢..e"VC'¥)i;'i'¥::'}:»L""E£d-ictow portions in the statement of recordedundegr section 161 Cr.P.C., were marked as 4.1' Sessions Judge on appreciation of V._ev1'dence":.and on hearing learned counsel for parties, ":l:lacV(iuitted accused 1 to 6 for an offence punishable under N ' 'ii » 1 section 506 IPC and convicted them for offences punishable under sections 143, 147, 148 8: 307 r/w 149 _11>c"-.._,41a_;1 sentenced them to undergo imprisonment for a" . ranging from 15 days to two years,W'i'he 1earrie'djSess'ion8v' f"
Judge imposed fine of Rs.500/---- each under section 143, 147, 148 xr./w '"148 1Pcg}4:;d._,_VfiVn§: 8 Rs. 1000/ -- each for an offence punishable section 307 IPC with default sentence-'-- Therefore.,_'»accused 1 to 6 are before this Court._ f
5. I have' learned counsel for accused, Vijpayikufiri-ar..Ix'i§ajage, iearned HCGP for State.
6. The pointsv that arise for determination are:--
inf-1.] W.hetI'1'er"'the prosecution has proved that 28.08.1995 at about 6.30 a.m., I to 6 armed with deadiy _ ' nieapons in furtherance of common object of unlawful assembiy assaulted PW} with dangerous weapons in the backyard of PW14' in Dharmapura Village, Hunsur belonged to scheduled caste and they were residing in Harijan Colony of Dharmapura Village of Hunsur T
8. It is the case of prosecution that l;l'1e1'€j4":'WE3.S: ' between accused 1 to 6 on one side_a»nd_PWlh ll other side. Accused 1 to 6 were followers called "Janatadal". PW1 8: PV~72_"were followers».:vof':fCongress * it party". Accused 1 to _6 hadp___4_lcarn_pa%igne'(1 ffanatadal candidate during Taluk which was held a few months prior to There were frequent on one side and PW1 & PW2 onlitlfei V:
9. The pVp1'osec1_if,iorx5llliilorder to bring home guilt of the accused, has irelied eye--witness account of PWl--
' Chaluavaiah _[1njured'" it witness}, PW2--Chaluvaraju (first p_iriforrr1arit}pt '*..PW1?}i--7£aIavamma. The other witnesses narnely Pl7llll'3;Cxlovindaraju 8: PW6--Puttaswamy have not l',supported;. the case of prosecution. The prosecution has " it "1'eelied~_. on the t medical evidence of PW8--
V,;l.l4;.
N c 8 Dr.B.T.Chandrashekar. The prosecution has relied on recovery of Weapons of assault on the information volunteered by accused No.1 to 6.
10. It is the case of prosecution that at occurrence, PW1 was proceeding towards off ' house of PW14 to collect hay, at that tiine,l".g1c'cused.V_ came there and assaulted him, As alrepaldy stated. Altlierefiufas previous enmity between acculsed°»1 to 6 and PW} <8: PW2 on the other l'"Ilherefore, their" evidence needs careful scrutiny before a'ccleptanc'e;:.15W2--ChaIuvaraju lodged first infor:'n__ationlrelating at 10 a.m. on 28.08.1995.' inibrfization report was registered on the basis offirst lodged by PW2.
'~ ;,P\j\[fp:1--Cha1uyaiah'(injured witness] has deposed; on the at 6.15 a.m., PW} was proceeding towards of house of PW14 to collect hay; on the 'runway, the was confronted by accused 1 to 6; accused No.1 was 1' llfholding a chopper and other accused were holding knives; N (£,_.\,;:\.u\44..» accused No.1 assaulted on ieft side of neck of PW1 with a chopper; accused No.4 assaulted on the head of a knife and other accused assaulted him. _ injuries on his neck and head. The inciden't'*wa}:., wi.tnessed~«.. by PW2, PW3 & PW6. After two consciousness in the hospital;.__ he was' an iiinpratient "for" period of 25 days; he has identiliedaa weapons "of assault as per M.0.1 to l\/1.0.6 andihlooiilstairiedclothes as per M.O.7 8:
M.O.8. 5 deposed: he had suppoi"'ted.o;r1e litigation and accused No.5 was' civil litigation. PW1 was cited as one of the.._witnelssesl_foielEéaiiaramma in the aforestated case. Pvfil has adrnitted that after the civil litigation was decided ~ _Vfavour',of--,accused No.5, a panchayat was held in the l panchayat verdict was in favour of Javaramma, which"~--V:acc;used No.5 did not accept. PW1 has denied 5 " suggestion that since accused No.5 did not accept the verdict oi"';:)arichayat, there was enmity between PW} and family A"
1' v "Am 10 members of accused No.5 had aggravated. PW1 has admitted that earlier he has lodged a complaint against accuse_d.nN-3_.5 and others and later they were acquitted in that V-V. .;. During crossexamination, has; deposed: PW 11; was present when he was injured in"ihe----occurren(:eV Lhatjtoo'k._ place at 6.15 a.m. The occumen'e.e took__place"V_:foi~*;:about 15"
minutes.
12. We find from the of"*~§W'~:lj_..tl'1at he has not deposed that .:(:3'ahad...assaulted him with weapons. The tl'1atg accused 2, 3, 5 & 6 also assauited hilmfis va'"gue..<
13. We""s._fin:1".itl_;e< medical evidence of PW8-- Dr..'.«~'.,§-p:.'l"V.Chandrashekhar that PWI was examined at about .A «o;n--..2_8.08.1995 in the General Hospital at I-Iunsur _1s'a.ffered following injuries:--
hél'. Incise wound measuring 2" X bone deep on back N <:Q~é"'""' '{"' "side of the head 11 II. Incise wound over left shoulder measuring 3%" X Mi" 2;: 31;"
III. Incise wound on right side and backside of head. PW8 had opined aforestated injuries are sirap~1e in nature and he had issued wound certificate as "
14. If all the accused had wielded. weapons"lcho'ppe.rs' and knives, PW1 -would havesui"fer*ed Therefore, the evidence of PW 1*--tl1at accused 8: had: * also assaulted him does not inspire confidence. ii
15. PW2 is the first-linforrlriarfigv an&'--.A1\§.,,i5 stated to have witnessed PW2 has deposed; on the date of occurrence, Vwhen' «returning after attending nature's seccr1dLcall;' PWl..was'-in'"the backyard of PW14; accused 2 to ' '~ &5V'w«ere""present; thejfivere armed with knives and choppers; fiassaulted on the neck and back of PW1 with chuohppersfihl suffered injuries on his head and back; PW2 contacted Hunsur Police over phone and Hunsur police came vtohthe place of occurrence and shifted PW1 to General A]! i,\,(3,» rv 12 Hospital at Hunsur; PW2 lodged first information as per Ex.P.1; PW2 showed the place of occurrence to the Investigating Officer, who after inspection prejpar_'ed"~_Aa rnahazar as per Ex.P.2. PW2 has categorica1ly'stated"
when accused 2 to 5 assaulted PW];,»~accus€_:d f3i'6_'_wereu if not present at the time of occurrer:'1*.r;e.1'_1'_3W2 w'as"freated*--~as1vfa hostile witness and he was cioss:exarfiined.by .lear_r1--ed, Fublicr . L' Prosecutor.
During cross--exarriinatio1j;; ; half~heartedly admitted presence of has identified M.O.l, whicH..cwa§sIheld'jacc§.:sed'3~lo;"l; and M06 held by gccusaed No§67I'and were held b accused 2 to PW2 has deposed '-that ' accused No.1 t rew awa a chopper and ran./away_. iron}. the place of occurrence. has depo':-fled; _poli_ce1: two knives and four choppers frornthe place of V occurrence; one from front yard of house of Pllfjf}.-Thiriimegowda.and other weapons from; backyard of ' 13 3.6. Thus, we find evidence of PW2 is not consistent with the evidence of PW}. PW1 has not deposed that acc1,1sie.d?._, 3 & 5 had assaulted him with knives and choppers.' _ stated that he was assaulted by accused No.1... with a chopper and a knife. Therefore..--Aev.idesnce.lof lI¥*V\i','*'V-_.'3,_,_ tr-.a.t accused 2 to 5 assaulted PW..1 looks highly improbable.
17. PW3--Govindaraju' ' is " e.s.'lEated:--' have witnessed occurrence. has thezrsase of prosecution. Therefore,}P'W3.. as allhostile witness.
18. PW3'has thendate of occurrence, at about 6 a.m..'there near bus stand in the village and also near the _l:V1ou.se of that quarrel was between family " '~ Amsinbiers of'PWllandVfami1y members of accused No.5. PW3 "Was « "as a hostile witness and he was cross- e:.<__aVmin_ed' learned Public Prosecutor. T % (QM JV 14 Even during cross--examinaiion, PW3 has reiterated the version given by him in eXamination--in--chief. Therefore, the evidence of PW3 is of no avail to the case of up
19. PW4--Giriyaiah has given evidence relatingto K weapons of assauit. In View of evideinceidgivgediii by chopper was seized from the, fronthyard of house of Thimmegowda and other Weapons of as.s_au1.i}= xzcdferedddseized from the backyard of house eiridence PW4 cannot be accepted.
occurrence xE1tV_~.8"d'L.VITl;'>Wd'1CIfil'h€ was in his shop, one Muddegovydagg over a chopper held by accused N0."1 later handed over the same to police. v.P:'JV6¥P~uttasu}ariiAy is stated to have witnessed the iievidhas not supported the case of prosecution. During .cross~?eXamination, no incriminating evidence has it
- Vubeen ' 0»-A 'L' 15
22. PW?'-Appanna is stated to have attested seizure of bloodstained clothes of PW1. PW7 has not supported the case of prosecution.
23. As already stated, PW8--Dr.B.T.Chandrashekha.r"had examined and treated PW1 at 9.45 a.rn. on General Hospital at Hunsur and he has_.Vgitren'efidentc*e:_ it relating to injuries suffered by ' which heezjl described in paragraph 13 of judgtnent.
24. PW9--Siddanaika, __ who iesttalleged to 'hatre yiritnessed seizure of weapons niariied 7.as:,j_'at_ the instance of accused has riot supported the -ease of prosecution. 2.5. PWu1"0_¢.Shi\rappa',_ " is alleged to have witnessed seizure of two knives at the instance of accused 2 to 5 has » _supp'o_rted~-- the case of prosecution. The':i'eyidence of PW11--Swamy Gowda relating to seizure of a chopper marked as Ex.P.4 from the shop of //"?\inimeg0Wda (PW5) has not been seriously C VCTt6d. I M, II waw' 16
27. The evidence of PWl2--D.T.Krishna Naika relates to seizure of bloodstained clothes of PW1 as per Ex.P.6, so.__also evidence of PW13--S.Siddaraju.
28. PW14--Ya1aVamma is an important M the maternal aunt of PW1. PWI4 haslde'posef;1; date occurrence, PW1 had come near her';ho't--1_se carrying ha;,{f'~on"._ the date of occurrence at about'-7_fl'aLm. accused '1: to;vl6"c'hased ll PW} and assaulted himgwitht.l-swords"-and linivesdand ran away from that place; occurrenceillto'okfiplacelnear her house. there \}€aS'* enniitf-~l3:et32treen"*--PW1 and accused relating to dispute between dafarainngia and accused No.5. PWI4 has admittétedfifhat civi.l__oas.e pending between Javaramma and '.'.'1tj3V('Ilt1'S(fidv'~l'l'*tT.(')'.<!"_d:""'$":.7'3;.S decided in favour of accused No.5. PWI4 has--at.dznitt'ed in the said case, PW1 had gone to depose .v in favou'r:&of' said Javaramrna. PWl4 has admitted that PW1, W3 and four others belonged to a political party called .l "congress party" and accused 1 to 6 belonged toa political iv ",QV\.,;7m£.\.
17 party called "Janatadal". PW14 has admitted that PW} 8:
PW2 were picking up quarrels with accused without Vreasons. PW14 has deposed; when occurrence took p1a_c;é,"'lshe..: inside the house, by the time she came out. was over; about 60 -- 70 persons had[A_gat:h.elred'--_in'_i"ront.'oi house; she had not \'2\r1tn.esseds'tlf_1e occ't1_rrence;tV.PuW..2:V infolifrned her about occurrence; PW14 knowlplhow occurrence took place and who "the to place of occurrence at8 shifted to hospital; PW 134 chasing PWI.
date of occurrence at aboutilfi followers had assaulted the accused! on the basis of complaint given by accused; vcrirninal case was filed against PW1, PW2 . &«four_otheris';--7l'he case was pending in the Court at Hunsur. At .this 'juncturg, it is relevant to state that PW14 was not tr'eaf;ed as a hostile witness. There is nothing on record to indicate that she was inimical to PW1. It is established N. a/!LV'"0"""fl"
18
from evidence that PW14 is the maternal aunt of PWI. PWl4 has categorically stated that on the date of occurrenhceetat about 6 a.I'n., PW1. PW2 and four others had accused and caused injuries to accused. On _the_°o.asis"of first _ 9 information lodged by the accused, ha 'crirniiialV._:cag.¢"u;fas~ registered against PWI, PW2 and others and pending before the Court at _
30. Thus, we find genesis of occurrence. It is:'c1ear:ii*on1::thv¢:' l3Wl-4 that there was <3 6 on one side and PW1 had suffered injuries on one ofglthieivaceused had also suffered injuries on the circumstances, the case of pra§seVcut.ion accused 1 to 6 had formed unlawful » ;assen_ibly--.4and being znémbers of unlawful assembly had in the backyard of house of PW14 cannot be ac"cep'tedL i N, ! e'£3''%\<£~ .
19
31. The case of prosecution that accused 1 to 6 being members of unlawful assembly wielded deadly weapons on PW1 cannot be accepted, but fact remains PWI & on one side and accused 1 to 6 on the other side had-quaarreilede on the date of occurrence cannot be circumstances, the case of prosecution' that acc1,1s'e_c} ._1"'to 6 were members of unlawful assemblvéyand theyp'.ha':c1" assaul'ted'=.p PWI with knives and choppers'"with intentionandllllgnowledge by such acts if pw1 had'been"l<iilejd.T'they wouldliave been held guilty of an offence $pu1;ish'able.l:und.e1'r"section 302 IPC and thereby c.omm'_;ittec1 an offencevpi-._inisVhable under section 307 I}?fC cannot_..b_e yet the presence of accused 1 to 6 near place of o¢¢u.i:+rer:-cg" 'h:--1"s been established.
32.»§;. ll'herefore;wthe'.-crucial point that would arise for » detenn_,ir1at-;on-- .is:-
. ';Vv'h'om'arnongst accused 1 to 6 were responsible fo'r'c.ausing injuries to PWI?"
20
33. In proof of this fact, we have the evidence of PW1. PW1 has deposed that he was assaulted by accused 1 & 4. The evidence of PW2 that accused 2 to 5 assaulted HW1 is contrary to the evidence of PW1. PW1 was injuredl'~.in~.lthe occurrence. Therefore, the evidence of PW_l§l_"."ca.rin.oxt _ discarded. The evidence of PW3 lends to» evidence of PWI. In the circumstances», ' prosecution that accused 19 cc 6 had'"a,ssa2;1'£~EdV:'l5Wl'; choppers and knives looks impro'oah_le. If allithe accused had assaulted PW1 with d;an;:;erous§. like choppers and knives, he would have Asu"1l"fere.d_ll1nore~vinji1jries. PW1 (injured) has not .2,W3, 5 & 6 had assaulted him with knives and.scil}§p1§§c-:c:;"<.
34. 5* The evidence ot'PVlf14 would lend corroboration to the evidence oufA.l?W1 tomthe extent of occurrence that took place PW14. PWl-4 has clearly admitted that she had not seejnthe occurrence and she had not seen accused 1 to 6 assaulting PWI. The evidence of prosecution does not _ inbspire confidence regarding recovery of weapons of assault J\_!' 5» 21 at the instance of accused l to 6. PW2 has clearly admitted that the Investigating Officer seized weapons of assault during the afternoon from the place of occurrence. lherefore, the evidence adduced by prosecution that were recovered on the information volunteered-by ace.'used..._p1 to 6 cannot be accepted. In viewyof above"discrepancies. hold that the prosecution has not'».proi/edit'bey(§nd"reasenab_le doubts that accused 1 toV'll6««..}7verel'-members' assembly and accused 1 to with». Weapons assaulted PW1 and _ of rioting. The prosecution hasfailed toprove lrelasolnable doubt that accused 1l_AltClvj'_5 of unlawful assembly had assaulted PW1' and knives with such intention and knowledge if sluchhlacts they had caused death of PW}. Wfo11ld..&havelbe'en held guilty of an offence punishable 302 IPC, thereby committed an offence p't1_¥lishablel§*.V.under section 307 IPC, yet the evidence of PW1 that accused 1 & 4 had assaulted him with a chopper and a on left side of neck and head cannot be discarded. The 22 evidence of PW1 finds ample corroboration from rnedicai evidence. His clothes were stained with blood. The1'e_f_ore';V.the prosecution has proved that accused No.1 '7ie_Tfti,b side of neck of PW1 with a chopper arid", assaulted on the head of PWI a:_"k:1:ife« hurt to him. The injuries suffered by PW'1'-._v'c}ere Therefore, acts committed by 1*' St squarely attract an offence 324 fPC.
35. The 1ear.ned_ without appreciating evidence $11 , without noticing major discrep--anciVes_'in:'1the fsrosecution and ignoring the evidence 'of PW2 and his followers had assauitedifthev same occurrence, has held acousved 1 tor-guiityrof aforestated offences. Therefore, the . impugned -judgment cannot be sustained. . flv f\.1 23
36. In the result, I pass the foll0wIng:--
ORDER The appeal is accepted in part.
Judgment is set aside. Accused ..l1~~t.r)y $6 'o_Vfuu offences punishable under sections} rfw E49 EPC. Accused N0.l--li5._ai2'ezesh A"-and. _ --No.4--fl' Vishakanta are convicted fory__ari'~:Qi'fence..punishable under section 32-41PC. it p d H' V .
Regarding sgn.£%1$'< it The would submit that accusednll V.-.119 antecedents; they were in jail»./,_as and they have chances to reform themselves. "
Ti'-1,6 learned """ 'IQICGP for State would submit that armed with deadly weapons like a chopper a had chased and assaulted PW1--Chaluvaiah in a broadcvdlay light within the vision of public. PW1 was rescued Vbyléjxitervention of neighbours, otherms:§cused 1 & 4 S N' 24 would have dealt more blows and caused more injuries' to PW}.
The law is fairly well settled that sentence "to be imposed on the accused should neither be a."~.f1:ee¥~'bite sentence nor too harsh. The sentence should also opportunity to accused to reform themselves'; . _/if ll Considering all these aspects, proper to sentence accused 1, '€'3£..V-5} for siniplev,imprisonmentV V for a period of six months fine of /- each, in default to undergo for a period of one rnontht xfO'E_-.__:V11jl punishable under section 324 r/w 3419c} " l 5 -- -AAccolrdi.ng1yli"I pass" the following sentence:«~ Accused N¢s;"i"& 4 are sentenced to undergo simple lirnprison_ment,vlfor a period of six months and pay a fine of Rsl,_i,OOOl/éseach, in default to undergo simple imprisonment for a" period of one month for an offence punishable under isecjtion 324 r/w 34 -IPC. The period of detention undergone g\;;