Karnataka High Court
Basavegowda (A1) S/O Maligegowda vs The State Of Karnataka on 27 July, 2018
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
1
Crl.A. No.785/2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JULY 2018
BEFORE:
THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL No.785/2010
BETWEEN:
1. Basavegowda (A1),
Aged about 64 years,
S/o Maligegowda,
2. Annappa (A4),
Aged about 44 years,
S/o Thimmarayigowda,
Both the appellants are
Residents of Chikkakalbalu
Village, Harohalli Hobli,
Kanakapura Taluk,
Ramanagara District. ... APPELLANTS
[BY Sri. H.C. Hanumaiah, Advocate]
AND:
The State of Karnataka,
By Kanakapura Rural Police,
By State Public Prosecutor,
High Court Building,
Bangalore. ... RESPONDENT
[By Sri. Rachaiah, HCGP]
***
2
Crl.A. No.785/2010
This Criminal Appeal is filed under Section 374(2) of
the Code of Criminal Procedure, praying to set aside the
Judgment of conviction and sentence dated 03.07.2010
passed by the Presiding Officer, Fast Track Court,
Ramanagara, in S.C. No.261/2006 against the appellants
and acquit them by allowing this Criminal Appeal etc.
This Criminal Appeal coming on for Final Hearing,
this day, the Court delivered the following:
JUDGMENT
This appeal is by accused Nos.1 and 4, against the Judgment and Order dated 03.07.2010 passed in Sessions Case No.261/2006 on the file of the Presiding Officer, Fast Track Court at Ramanagara, wherein they were convicted for the offence punishable under Section 326 of IPC. Accused Nos.1 and 4 were sentenced to undergo rigorous imprisonment for a period of 2 years and to pay a fine of Rs.10,000-00 each, in default to pay the fine, to undergo simple imprisonment for a period of 8 months. Accused No.3 was released under Section 3 of the Probation of Offenders Act ['P.O. Act' for short], directing him to execute a bond for a sum of Rs.10,000-00 with one surety for the likesum and to observe the conditions with a direction to 3 Crl.A. No.785/2010 the Probation Officer to have over all supervision for a period of 2 years, etc.
2. The case of the prosecution is that; on 22.04.2001 at about 3.00 p.m., within the limits of Chikkakalbalu village in Kanakapura taluk, when P.Ws.1 to 3 were sitting underneath the "Honge" tree in their land, all the accused persons due to the land dispute between the parties, having formed an unlawful assembly in furtherance of the common object of murdering the said P.Ws.1 to 3, came to the spot armed with deadly weapons like clubs and sickle and committed rioting and assaulted P.Ws.1 to 3 with the said weapons and voluntarily caused hurt to P.Ws.2 and 3. Further, they caused grievous injuries to P.W.1 and further threatened them with dire consequences, and thereby committed the offences charged against them.
The injured namely P.Ws.1 to 3 were shifted to Kanakapura Government Hospital. P.W.6-PSI of Kanakapura Rural Police Station visited the hospital and recorded the statement of P.W.1 and thereafter, returned 4 Crl.A. No.785/2010 to the Police Station and registered a case in Crime No.41/2001 against 11 accused persons under Sections 143, 147, 148, 307, 324, 326 r/w. 149 of IPC. The injured were treated by P.W.7-doctor. After registering the case, P.W.6 visited the spot and conducted a mahazar as per Ex.P2, under which clubs and sickle were seized. The statement of the witnesses were recorded. The bloodstained clothes-M.Os.13 to 15 of P.W.2-Sannamma were seized and in this regard mahazar-Ex.P3 was drawn. After completion of the investigation, P.W.6 has filed the charge-sheet against all the accused persons under Sections 143, 147, 148, 307, 324, 326, 506 r/w. Section 149 of IPC. After committal of the case to the Court of Sessions, charges were framed against accused Nos.1 to 11 against the aforesaid offences. The said accused pleaded not guilty and claimed to be tried.
The prosecution in all examined P.Ws.1 to 7 and from their evidence got marked Exs.P1 to 7 and M.Os.1 to
15. 5 Crl.A. No.785/2010 The learned Sessions Judge after appreciating the oral and documentary evidence adduced by the prosecution and considering the totality of the circumstances of the prosecution case, held that benefit of doubt need to be extended to accused Nos.2, 5 to 11 and accordingly acquitted them and convicted accused Nos.1, 3 and 4 for the offence punishable under Section 326 of IPC and acquitted them of all the other charged offences.
Insofar as accused No.3 is concerned, he was released under Section 3 of the P.O. Act. The said accused has not preferred any appeal.
3. I have heard the learned counsel for the appellants and also the learned High Court Government Pleader.
4. Learned counsel appearing for the appellants/accused Nos.1 and 4 vehemently contended that P.Ws.1 to 3 though injured, their evidence is not corroborated with each other. P.Ws.1 to 3 are related to each other. P.W.2 is the wife of P.W.1 and P.W.3 is the son 6 Crl.A. No.785/2010 of P.Ws.1 and 2, hence they are interested witnesses. He further submitted that the other eye-witnesses namely P.Ws.4 and 5 are also related to each other. He submitted that there are material contradictions in the evidence of the injured witnesses and their evidence is not in consonance with the medical evidence. P.W.1 has stated that he sustained bleeding injury on his head but, there is no such injury reflected in the wound certificate. He further submitted that though the FIR discloses that P.W.1 was assaulted with sickle on his leg, there is no incised injury on the leg of P.W.1. It is also his contention that as per the FIR., accused No.4 is said to have assaulted on the head of P.W.3 only once but, as per the wound certificate there are 3 injuries sustained by the said witness. He further contended that the bloodstained weapons were not sent for FSL examination and even there is no report with regard to the bloodstained clothes of P.W.2 though it was sent for chemical analysis. He further submitted that according to P.W.5, it was accused No.5 who assaulted P.W.3 on his head with a club, which fact is not stated by any of the other witnesses. It is also his contention that 7 Crl.A. No.785/2010 according to the defence, P.Ws.1 to 3 sustained injuries when they were loading firewood to the tractor and when the said firewood fell on them and he submits that since the other accused have been given the benefit of doubt, the same benefit should have been extended to accused Nos.1 and 4 and accordingly, seeks reversal of the Judgment of conviction and sentence passed against them.
Per Contra, learned High Court Government Pleader vehemently contended that in this case, P.Ws.1 to 3 are the injured and P.Ws.4 and 5 are the eye-witnesses to the incident and all of them have supported the case of the prosecution. There may be some minor contradictions in the evidence of the said witnesses but, they do not go to the root of the prosecution case. He further submitted that the evidence of P.Ws.1 to 3 are corroborated by medical evidence supported by Exs.P5 to 7, which are the wound certificates in respect of P.Ws.1 to 3 respectively. The said wound certificates clearly disclose the injuries sustained by P.Ws.1 to 3. P.W.1 has sustained 7 injuries, out of which 2 injuries are grievous in nature. Further, 8 Crl.A. No.785/2010 P.W.2 sustained 7 injuries and P.W.3 sustained 3 injuries, which are simple in nature. He further submitted that since the overt-acts are attributed against accused Nos.1, 3 and 4, the learned Sessions Judge has rightly convicted the said accused persons and he submits that the appeal filed by accused Nos.1 and 4 may be dismissed.
5. Having heard both sides, the following points arise for my consideration:
1) Whether the Judgment and Order of conviction and sentence passed by the learned Sessions Judge, thereby convicting accused Nos.1 and 4 for the offence under Section 326 of IPC suffers from any illegality?
2) Whether the accused/appellants are liable for an order of acquittal by this Court.
6. I answer the points formulated above as under:
It is the case of the prosecution that due to the land dispute between the parties, on 22.04.2001 at about 3.00 9 Crl.A. No.785/2010 p.m. all the accused persons namely accused Nos.1 to 11 having formed an unlawful assembly armed with clubs and sickle, came near the land of P.W.1, wherein P.Ws.1 to 3 were resting underneath the "Honge" tree and the said accused indiscriminately assaulted P.Ws.1 to 3 and caused grievous injuries as well as simple injuries to P.W.1 and also caused simple injuries to P.Ws.2 and 3. Further, the accused also threatened them with dire consequences. P.Ws.4 and 5 shifted the injured P.Ws.1 to 3 to Kanakapura Government Hospital, wherein P.Ws.1 to 3 were treated by P.W.7. P.W.6-PSI of Kanakapura Rural police Station visited the hospital and recorded the statement of P.W.1 and thereafter registered the case and after completion of the investigation he has filed the charge-sheet.
7. In the First Information Report, P.W.1 has stated that there was a land dispute since 2-3 years between the parties. On 22.04.2001 at about 3.00 p.m., he along with his wife-Sannamma-P.W.2 and son- Basavaraju-P.W.3 were sitting underneath 'Honge' tree in 10 Crl.A. No.785/2010 his land and at that time, the accused persons having formed an unlawful assembly armed with clubs and sickle came near the spot shouting that they should be assaulted till they are dead and with the sole object of committing their murder, accused No.1 assaulted P.W.1 with the club on his left hand and also assaulted with the same club on his head and caused the injuries. Thereafter, with the sickle he was assaulted on both legs and caused bleeding injuries. Thereafter, his wife-P.W.2 was assaulted by accused No.3 with the clubs and accused No.4 assaulted P.W.3 with club on his head and caused bleeding injury and the other accused persons also assaulted with the clubs. When they were shouting, the people who were working in the nearby field came to the spot. The accused persons after threatening them with dire consequence left the place. The injured were shifted by P.Ws.4, 5 and one Madabasavegowda to Kanakapura Government Hospital etc.
8. In the evidence of P.W.1, he has deposed regarding the overt-acts of the accused that all the accused having formed an unlawful assembly armed with clubs and 11 Crl.A. No.785/2010 sickle, came to the spot and accused No.1 assaulted on his left hand with the club and also assaulted with the sickle on his left leg. Accused No.3 assaulted on his head with the club. Accused No.3 also assaulted P.W.2 on her left hand and then assaulted P.W.3 with the club on his head. Accused No.4 assaulted P.W.3 with the club and all the accused persons assaulted indiscriminately to the 3 persons. Thereafter, the accused persons threatened them and went away from the spot. The injured were shifted to Kanakapura Government Hospital, wherein the Police came and recorded his statement as per Ex.P1.
9. In the cross-examination of P.W.1, it is elicited that Hombalegowda and his father Maligegowda are brothers. There was partition when their forefathers were alive. However, his uncle and his father had not divided the property. It is further elicited that there was a civil case between the parties. However, he denied the suggestion that due to the said dispute, there was an enmity between the parties. P.W.1 in the cross- examination has stated that earlier there was a case filed 12 Crl.A. No.785/2010 against the accused persons, which ended in their acquittal. However, he has denied the suggestion that the present case is a false case filed against the said accused persons. He has further denied the suggestion that he sustained injury when he was trying to load wooden logs to the tractor and when the said wooden logs fell on him.
10. P.W.2 is another injured witness and she has also deposed with regard to the incident and the overt-acts of the accused stating that all the accused persons around 2.30 - 3.00 p.m. having formed an unlawful assembly armed with the clubs and sickle came to the spot and accused No.1 assaulted her husband-P.W.1 with the club on his left hand and also on his head. Thereafter assaulted with the sickle on his legs. She was assaulted by accused No.3 with the club on her left and right hands. Her son-P.W.3 was assaulted by accused No.4 with the club on his head and the remaining accused also assaulted with the clubs on all parts of the body. One Madabasavegowda, Kunagallaiah and Chikkaraju [P.W.3] came and intervened and thereafter the injured were 13 Crl.A. No.785/2010 shifted to the hospital. In the cross-examination, she has deposed that her husband i.e., P.W.1 had filed a case against the accused prior to the incident and in the said case, all the accused were acquitted since the case was not proved against them. She denied that for the said reason they have proceeded to file one more false case against the accused. She has also denied the suggestion that the witnesses sustained injuries while the firewood fell on them when they were loading the firewood to the tractor.
11. P.W.3 is another injured witness. He has stated in his evidence that all the accused having formed an unlawful assembly armed with the sickle and clubs, came to the spot. His father P.W.1 was assaulted by accused No.3 with the club on his left hand and thereafter accused No.5 and accused No.3 twisted the hands of his father and also assaulted on his legs with the sickle. Accused No.3 also assaulted his mother-P.W.2 with the club on her left hand and again twisted her hand and from the back of the sickle assaulted on her shoulder. P.W.3 has further deposed that accused Nos.3 and 4 assaulted 14 Crl.A. No.785/2010 him with the sickle on his head. Thereafter, one Basavaraju and Chikkaraju-P.W.4 intervened and the injured were shifted to Kanakapura Government Hospital. He has stated that the accused persons have assaulted them so as to prevent them from going to the land.
12. In the cross-examination of P.W.3, it is elicited that earlier a criminal case was filed against the accused and in the said case, all the accused were acquitted. However, he has also denied the suggestion that the injuries were sustained while they were loading the wooden logs to the tractor and when the said wooden logs fell on them.
13. P.Ws.4 and 5 are said to be the eye-witnesses. It is the evidence of P.W.4 that there was a land dispute between the accused and P.W.1 since 3 years. When he went near the land, the quarrel was going on between the accused and the complainants party. In the said incident, accused No.1 assaulted P.W.1 on his left hand with the club and accused No.3 assaulted P.W.2 on her leg. Accused No.4 assaulted P.W.3 on his head with the club 15 Crl.A. No.785/2010 and caused injury and the injured were taken to the hospital. In the cross-examination, he has stated that he had come to the village to distribute the marriage invitation card. He has admitted that P.W.2 is his sister. However, it is elicited that he has not independently witnessed the assault made by the accused persons.
14. P.W.5 has deposed that Maligegowda is his brother. There was a case in respect of a land dispute between the accused and his brother Maligegowda. The accused were armed with clubs and sickle. The injured were assaulted with the clubs and sickle and accused No.1 assaulted P.W.1 with the club on his left hand and also assaulted on his left leg. P.W.2 was assaulted by accused No.3 with the club on her left hand. P.W.3 was assaulted by accused No.5 with the club on his head and the other accused persons indiscriminately assaulted the 3 injured persons. P.W.5 is also an attester to the spot-mahazar Ex.P2 under which the weapons were seized. According to him, bloodstained clothes were seized by the Police under the mahazar-Ex.P3. In the cross-examination, he has 16 Crl.A. No.785/2010 denied the suggestion that he is deposing falsely against the accused persons.
15. P.W.6 is the PSI., who recorded the statement of P.W.1 and registered a case on the basis of such statement, which is marked as Ex.P1 and thereafter transmitted the FIR-Ex.P4 to the jurisdictional Court. He conducted the investigation and filed the charge-sheet.
16. P.W.7 is the doctor at Kanakapura Government Hospital. He has stated in his evidence that at about 7.45 p.m. on 22.04.2001, the injured person viz., Maligegowda was treated by him and he noticed 7 injures, out of which injury No.6 was grievous in nature. He issued wound certificate as per Ex.P5. Further on the same day at 8.30 p.m., he treated Sannamma and noticed 7 injuries and issued wound certificate as per Ex.P6 and at about 8.15 p.m., he treated Basavaraju and noticed about 3 injuries and issued wound certificate as per Ex.P7. He has stated that the injured were admitted with the history of assault in their land. According to him, P.W.1 had sustained grievous injury and P.Ws.2 and 3 have sustained simple 17 Crl.A. No.785/2010 injuries. Injury Nos.1 and 2 mentioned in Ex.P5 can be caused when a person is forcibly assaulted with the club and similarly injury Nos.3 and 7 could be caused when a person is assaulted with the sickle. Further, injury No.1 shown in Ex.P6 also could be caused with the sickle and injury Nos.2 and 3 could be caused with the club. He has further stated that injury No.1 mentioned in Ex.P7 could be caused with the sickle and injury Nos.2 and 3 also could be caused with the sickle. In the cross-examination, by the defence he has stated that it is possible that the said injuries could be caused when the wooden logs are carried in a truck and the same are fallen on them.
17. From the above evidence adduced by the prosecution, it is established that P.Ws.1 to 3 are the injured persons. Their evidence with regard to the incident which occurred on 22.04.2001 at about 3.00 p.m. and sustaining those injuries which are noticed by the doctor- P.W.7 cannot be doubted. The doctor-P.W.7 while noticing the injuries sustained by P.Ws.1 to 3 has stated that the injured were brought to the hospital with the history of 18 Crl.A. No.785/2010 assault in their land. It is the contention of the learned counsel for the accused that according to the prosecution witness namely P.W.1, accused No.3 assaulted him on his head, however, no injury was found on the head and further as per the wound certificate-Ex.P5, P.W.1 sustained as many as 7 injuries, however, all the 7 injuries are not mentioned by the prosecution witnesses. In this regard, it is to be seen that according to the prosecution witnesses, there were several accused persons who came to the spot and assaulted the injured indiscriminately and out of which, the specific overt-acts are stated against accused Nos.1, 3 and 4. The trial Court has found that the overt-acts attributed against accused Nos.1, 3 and 4 are spoken by all the injured persons. However, insofar as the other accused persons including accused No.5, there is no specific and consistent evidence regarding the assault made by them. Accordingly, the benefit of doubt was given to the other accused persons. Hence, merely because the witnesses have not specifically spoken about all the injuries sustained by them, the same cannot be said to be fatal to the prosecution case. Minor 19 Crl.A. No.785/2010 discrepancy or exaggeration in the evidence of the injured witnesses will not render their evidence untrustworthy.
18. According to the evidence of P.W.1, who sustained simple as well as grievous injuries as per Ex.P5- wound certificate, he was assaulted by accused No.1 on his left hand with the club. According to the medical evidence, P.W.1 was referred to Victoria Hospital, Bengaluru and according to the X-ray report, (1) left clavicle AP. Evidence of fracture of shaft of the clavicles noted, (2) left hand AP. Evidence of fracture distal 3rd of 4th metacarpal of left hand noted. Learned counsel appearing for the accused vehemently contended that the said grievous injuries sustained by P.W.1 has not been established by the prosecution by producing the X-ray report. In this regard, he relied upon the decision of the Andhra Pradesh High Court reported in 2011 CRL.L.J. 4257 in the case of Bandela Daveedu Vs. State of A.P. Placing reliance on the said Judgment, he argued that even in the present case, Radiologist was not examined and even the X-ray report was not produced and marked. 20 Crl.A. No.785/2010 Hence, he argued that the prosecution has failed to prove the offence punishable under Section 326 of IPC.
19. The evidence of P.W.7 and the wound certificate at Ex.P5 goes to show that the opinion with regard to the injury No.6 in particular, which is mentioned as grievous injury by P.W.7 was based on the X-ray report issued by the Victoria Hospital, Bengaluru. However, the said X-ray report is not marked in the evidence. There was no difficulty for the prosecution to mark the said X-ray report or to examine the doctor from Victoria Hospital. P.W.7 though deposed in his chief-examination that the injured P.W.1 was referred to Victoria Hospital, thereafter, the X- ray report was received from the said hospital and then he opined that injury Nos.1, 3, 4, 5 and 7 were simple in nature and injury No.6 was grievous in nature. However, P.W.1 the injured himself has not stated in his evidence that he was referred to Victoria Hospital and subjected to X-ray examination. Whether the X-ray report mentioned in Ex.P5 pertains to P.W.1 is also not clear. Hence, in the facts and circumstances of the present case, it cannot be 21 Crl.A. No.785/2010 said that the prosecution has established the fact that P.W.1 had sustained grievous injuries. There is an element of doubt created in the mind of the court, in this regard.
20. Regarding injuries sustained by P.Ws.2 and 3, their evidence is consistent with regard to the said injuries having sustained in the incident and the specific overt-acts are against accused Nos.1, 3 and 4. P.W.2 has sustained as many as many as 7 injuries. The injuries mentioned in Ex.P6 are said to be simple in nature. Similarly, 3 injuries sustained by P.W.3 as mentioned in Ex.P7 are said to be simple in nature.
21. Considering the entire evidence and the material placed on record and having re-appreciated the same, in particular, the evidence of the injured witnesses, I am of the view that the prosecution has been able to prove the incident in question and accused Nos.1, 3 and 4 having caused the injuries to P.Ws.1 to 3. However, the prosecution has failed to prove beyond reasonable doubt that the said accused persons caused grievous injury to 22 Crl.A. No.785/2010 P.W.1. Insofar as accused No.3 is concerned, he has been released under Section 3 of the P.O. Act by the learned Sessions Judge. There is no appeal challenging the said order passed by the learned Sessions Judge.
22. In view of the aforesaid discussion, I am of the view that the Judgment and Order of conviction and sentence passed against the accused persons for the offence punishable under Section 326 of IPC is liable to be set aside and the same is liable to be modified. Accordingly, I pass the following:
ORDER The appeal is partly allowed. The Judgment and Order of conviction dated 03.07.2010 passed in Sessions Case No.261/2006 and the sentence dated 14.07.2010 are set aside and the same is modified as under:
The appellants namely accused Nos.1 and 4 are convicted for the offence punishable under Section 324 r/w. 34 of IPC.23
Crl.A. No.785/2010
Learned counsel for the appellants submitted that accused No.1 is an aged person and the incident is of the year 2001. The parties are related to each other and there are no other untoward incident which has occurred after the incident in question and the parties are living harmoniously. He further submits that at this point of time, if the appellants are sent to judicial custody, then the harmonious relationship between the parties may got disturbed. Accordingly, he submits that a lenient view may be taken.
On the other hand, learned High Court Government Pleader vehemently contended that the appellants themselves have gone to the land of the complainants and assaulted them and caused injuries and therefore, they are not entitled for any leniency.
Considering the facts and circumstances of the case and also keeping in view the decision [supra] relied upon by the learned counsel for the appellants, I pass the following sentence:24
Crl.A. No.785/2010
The appellants/accused Nos.1 and 4 are sentenced to pay a fine of Rs.50,000-00 [Rupees Fifty Thousand only] each and in default of payment of fine, to undergo simple imprisonment for a period of one year each for the offence punishable under Section 324 r/w. Section 34 of IPC. Out of the total fine amount, a sum of Rs.30,000-00 [Rupees Thirty Thousand only] each, shall be paid to P.Ws.1, 2 and 3 respectively as compensation. The fine amount shall be deposited before the Trial Court, within a period of 3 [three] months from today.
Sd/-
JUDGE Ct-NR Ksm*