Karnataka High Court
Kumbara Poonacha vs The State Of Karnataka on 9 April, 2018
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF APRIL, 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL NO.1338 OF 2012
C/W
CRIMINAL APPEAL NO.188 OF 2013
CRL.A.NO.1338/2012
BETWEEN:
KUMBARA P OONACHA
S/O KARIAPPA
MAJOR BY AGE
R/O HEMMADU
NALKERI VILLAGE
VIRAJPET TALUK
KODAGU DISTRICT ...APPELLANT
[(BY SRI HARISH GANAPATHY, ADV. - ABSENT;
SRI S.G.RAJENDRA REDDY, AMICUS CURIAE]
AND:
THE STATE OF KARNATAKA
REPRESENTED BY CIRCLE INSPECTOR OF POLICE
VIRAJPET RURAL POLICE STATION
VIRAJPET, KODAGU ...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
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THIS CRL.APPEAL IS FILED UNDER SECTION 374 (2)
OF CR.P.C PRAYING TO SET ASIDE THE ORDER AND
SENTENCE OF IMPRISONMENT DATED 10.10.2012 PASSED
BY THE P.O., F.T.C., VIRAJPET IN S.C.NO.57/1999 -
CONVICTING THE APPELLANT - ACCUSED NO.1 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 114, 143, 447,
302, 307 READ WITH SECTION 149 OF IPC.
CRL.A.NO.188/2013
BETWEEN:
1. KUMBARA KALAPPA
S/O KARIAPPA
AGED MAJOR
2. KUMBARA KUSHALAPPA
S/O KARIAPPA
AGED MAJOR
BOTH ARE R/O HEMMADU
NALKERI VILLAGE
VIRAJPET TALUK
KODAGU DISTRICT ...APPELLANTS
[(BY SRI CHALUVA RAJA G.V., ADV. (ABSENT);
SRI S.G.RAJENDRA REDDY, AMICUS CURIAE]
AND:
THE STATE OF KARNATAKA
REPRESENTED BY CIRCLE INSPECTOR OF POLICE
VIRAJPET RURAL POLICE STATION
VIRAJPET, KODAGU ...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
3
THIS CRL.APPEAL IS FILED UNDER SECTION 374 (2)
OF CR.P.C PRAYING TO SET ASIDE THE ORDER AND
SENTENCE OF IMPRISONMENT DATED 10.10.2012 PASSED
BY THE P.O., F.T.C., VIRAJPET IN S.C.NO.57/1999 -
CONVICTING THE APPELLANTS - ACCUSED NOs.4 AND 5
FOR THE OFFENCES P/U/S 114, 143, 447, 302 R/W 149 OF
IPC.
THESE CRIMINAL APPEALS COMING ON FOR
HEARING THIS DAY, BUDIHAL R.B. J., DELIVERED THE
FOLLOWING:-
JUDGMENT
Since these two appeals are in respect of the same Judgment and common questions of law and facts are involved in both these appeals, they are taken together for disposal by this common Judgment.
2. Crl. A. No.1338/2012 is preferred by accused No.1 and Crl.A.188/2013 is preferred by accused Nos.4 and 5. Both the appeals are filed being aggrieved by the Judgment and Order of Conviction dated 10.10.2012 passed by the Fast Tract Court at Virajpet in S.C. No.57/1999 wherein the appellant - accused No.1 is convicted for the offences punishable under Sections 114, 4 143, 447, 302, 307 read with S.149 of IPC and appellants- accused Nos. 4 and 5 have been convicted for the offences punishable under Sections 114, 143, 447, 302 read with S.149 of IPC.
3. Brief facts of the case as per the complaint averments of PW-1 is the complainant filed the complaint as per Ex.P3 wherein he has stated that he is having one petty shop and doing the business. About four years back as he fell from the tree and sustained fractured injury to his waist he was not able to move about and he is having one pushing cart shop. On 26.09.1996 at 7.30 p.m. himself and one Nanjappa were sitting talking and at that time one Poonacha, Biddappa, Nanjappa, Kalappa and Kushalappa who are all sons of Kumbar Kariappa came towards the shop of the complainant. Accused No.1 Poonacha was holding the Katti in his hand and after hearing the same as he was frightened he tried to close the door of the shop. Accused Nos.1, 2 and 3 came to the shop and pushed the door of the shop, came inside, all of a 5 sudden accused No.1 when tried to assault the complainant with Katti near his right ear, in order to avoid the blow the complainant raised his right hand and accused No.1 assaulted near his lap portion. The complainant screamed. Hearing the same the mother-in- law of the complainant by name Pushapmma came running. At that time, those three persons dragged Nanjappa from the shop of the complainant outside and accused No.1 assaulted said Nanjappa also with the said Katti and he caused the injuries on the left thigh. Accused Kalappa and Kushalappa who are the appellants in the connected appeal and who are brothers of accused No.1 were witnessing the said incident. The complainant as well as Nanjappa as they were not able to sustain the pain of the injuries were making hue and cry and at that time all the accused persons ran away towards their house along with the said katti. When the complainant requested them not to assault Nanjappa even then, he was assaulted and the injuries are caused to him. As there was no transport facility to go to the hospital, they were at the spot itself. 6 At 9.00 p.m. because of the heavy bleeding Nanjappa expired at the spot itself. Accused No.1 had borrowed money from the complainant at the festival time and when complainant asked him to return the money, accused No.1 abused the mother of the complainant in filthy language and at that time there was exchange of words between complainant and accused No.1 and accused No.1 assaulted the complainant. In that connection the complainant gave complaint to the police. Therefore accused No.1 was having enmity towards the complainant. Further during the marriage function of daughter of one Seethamma when they were dancing, the deceased Nanjappa stamped the leg of accused No.1. Hence, accused No.1 was having enmity towards Nanjappa also. On the date of the incident, hearing that only complainant and Nanjappa are in the shop, accused No.1 came along with his brothers there with the intention of committing the murder and assaulted the complainant with katti, so also assaulted Nanjappa with the same katti and committed the murder 7 of said Nanjappa. Hence he has requested the police to take appropriate action as against the accused persons.
4. On the basis of the said complaint Ex.P3, crime came to be registered in Crime No.795/1996 for the offences punishable under Ss. 307, 302 read with S.34 of IPC. After conducting the investigation, the I.O. filed the charge-sheet against the accused persons for the offences punishable under Ss. 143, 447, 448, 114, 307, 302 read with S.149 of IPC.
5. The learned Fast Track Judge, after hearing both the sides framed the charge against the accused persons for the said offences. When the charge was read over and explained to the accused persons they pleaded not guilty and claimed to be tried.
6. As the accused Nos.2 and 3 were absconding, split-up charge-sheets were filed as against them and the learned Fast Track Court Judge framed the charge against accused Nos.1, 4 and 5 who are the appellants in these 8 two appeals and when the charges were read over and explained to them, they denied the charges and claimed to be tried. Accordingly the matter was posted for recording the evidence of the witnesses.
7. The prosecution in support of its case in all examined 29 witnesses and marked the documents Exs.P1 to P25 and also got marked the Material Object Nos.1 to 5. Then the accused Nos.1, 4 and 5 were examined under S.313 of Cr.P.C. and their statements came to be recorded. After that, on the said of defence evidence, 6 witnesses were examined as DW Nos.1 to 6 and documents Exs.D1 and D2 were marked. After hearing the arguments of both sides and also considering the material placed on record both oral and documentary, learned Fast Track Court Judge came to the conclusion that the prosecution proved its case against all the accused Nos.1, 4 and 5 for the said offences and accordingly convicted all the three and they were sentenced accordingly. 9
8. Being aggrieved by the Judgment and Order of conviction and also the sentence imposed on them, the appellants in the above two appeals are before this Court. They have challenged the legality and correctness of the Judgment of the Fast Track Court on the grounds they have raised in the respective appeal memorandums.
9. Since the learned counsel on record for the appellants remained absent continuously on 3 to 4 adjourned dates and one of the appeals is of the year 2012 filed by appellant - accused No.1 and the connected appeal is filed in the year 2013 and as there are no grounds to further adjourn the matter, We appointed Sri S.G. Rajendra Reddy, Advocate as Amicus Curiae to represent the appellants in both the appeals and also to assist the Court in hearing the matter. We heard the learned Amicus Curiae Sri S.G. Rajendra Reddy, so also learned Addl. SPP on the respondents' side in both the appeals.
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10. Learned Amicus Curiae made the submission that the records go to show that prosecution failed to prove its case beyond all reasonable doubts against any of the accused persons. He drew our attention to the records of the case both oral and documentary and made the submission that so far as appellant accused Nos.4 and 5 are concerned, absolutely there is no material to show their involvement in committing the alleged offence. In this connection he submitted that only in the complaint Ex.P3, PW-1 has mentioned that accused Nos.4 and 5 were standing and witnessing the incident. Except this, there is no other material placed even during the course of recording of evidence of prosecution witnesses. He submitted that none of the witnesses deposed about any act committed by accused Nos.4 and 5. Hence he submitted that in the absence of any material as against accused Nos.4 and 5, learned Fast Track Court Judge erred in convicting appellant Nos.4 and 5 also. 11
11. Coming to the case as against accused No.1, learned Amicus Curiae also made the submission that even against accused No.1 there are no cogent and satisfactory material placed by the prosecution to show his involvement in committing the alleged offence. He drew our attention to the oral evidence of PW-1, PW-3, PW5, PW-6, PW-8 and PW-10 and also the evidence of the official witnesses. He made the submission that looking to the evidence of PW-1 the injured witness and cross- examination of PW-1, it raises a reasonable doubt about involvement of accused No.1 also. Regarding the prosecution case that he giving voluntary statement and seizure of the bill-hook (kokke katti) M.O.3 at his instance is concerned, firstly he made the submission that no such voluntary statement has been produced before the Court. He also made the submission that it was stated to have been seized under seizure mahazar Ex.P7. He drew our attention to the contents of Ex.P7 so also the evidence of PW-10 and made the submission that this witness PW-10 deposed in his evidence that the CPI asked accused 12 persons for their going to the spot to bring the katti i.e. MO-3 and accordingly accused brought the same. Referring to this and the evidence of PW-10, the Amicus Curiae made the submission that this goes to show that alleged seizure of MO-3 is not at the instance of accused No.1. It is also his contention that it was in the open place accessible to the public at large and he submitted that when CPI told accused No.1 to go and pick that MO-3 it also goes to show that CPI was already having the knowledge of the said material object. Hence he submitted that S.27 of the Evidence Act will not be attracted for the said seizure of MO-3 katti.
12. Learned counsel further made the submission that even with regard to doctor's evidence who is stated to have conducted the autopsy over the dead body he has not at all deposed before the Court about the nature of the injuries and it is also not his opinion that the said injuries were sufficient in the ordinary course of nature to cause the death of a person. Hence he submitted that even the 13 doctor's opinion is not at all helpful to the prosecution case in establishing the involvement of the appellant - accused No.1.
13. Learned Amicus Curiae also made the submission that when the doctor has not given the opinion specifically that the injuries sustained by Nanjappa the deceased are sufficient in the ordinary course of nature to cause the death of that person then in that case the alleged sections 307 and 302 of IPC will not be attracted. At the most the said offence will fall under S.304 Part II of IPC 'culpable homicide not amounting to murder' in view of sub-clause (3) of the said section. It is also his contention that looking to the oral evidence of the prosecution witnesses none of the witnesses have supported the prosecution case that they have seen A1 assaulting deceased Nanjappa with katti - MO.3 and caused the bleeding injuries to him. It is also his submission that even the evidence of the PW-1 the injured witness will not inspire confidence in the mind of the Court looking to his answers given in the course of his cross-examination. 14 Hence he submitted that learned Fast Track Court Judge has not at all taken these aspects into consideration. There is no proper reading and appreciation of the material both oral and documentary and the learned Fast Track Judge wrongly proceeded in the matter holding that prosecution proved its case beyond all reasonable doubts against accused Nos.1, 4 and 5. Learned Amicus Curiae submitted that whatever the decision arrived at by the learned Fast Track Court Judge is not in accordance with the materials placed on record. Hence the Judgment and Order of conviction is not sustainable in law. He lastly submitted to allow both the appeals and set aside the Judgment and Order of conviction passed by the Fast Track Judge and to acquit all the three accused i.e. A1, A4 and A5 from all the charges.
14. Per contra, learned Additional SPP made the submission that so far as accused No.1 is concerned, there is the evidence of injured witness PW-1 - complainant herein. He drew our attention to the prosecution material, 15 oral evidence of the witnesses and also the documents produced in the case. He submitted that PW-1 has been examined by doctor PW-13 so also PW-14 and PW-23. He made the submission that evidence of PW-1 coupled with the evidence of PWs 13, 14 and 23 clearly goes to show that PW-1 sustained the bleeding injuries and there is no reason to disbelieve the injured eye witness' version. He also made the submission that accused No.1 made the voluntary statement in the presence of panch witnesses and he led the police and the panch witnesses to the place and took out and produced the material object No.3. Learned Addl. SPP also made the submission that the panch witness who has been examined as PW-10 for the seizure mahazar - Ex.P7 under which MO.3 is said to have been seized supported the prosecution case. It is also his submission that PW-5 - K.M.Bheemaiah, scribe to the complaint Ex.P3 in his evidence has clearly deposed that he read the contents as narrated by PW-1 the injured eye witness. It is also his submission that this Bheemaiah PW- 5 is also the panch witness to the seizure of the clothes of 16 the deceased seized under Ex.P4. Hence it is his contention that so far as PW-1 sustaining the injury and the seizure of the clothes of the deceased and the seizure of MO.3 katti at the instance of accused No.1, prosecution has placed the satisfactory and acceptable material during the course of trial. Hence he submitted that the Trial Court has taken these aspects into consideration and learned Addl. SPP submitted that the oral and documentary evidence produced by the prosecution clearly establishes the case of the prosecution against accused No.1 as well as accused Nos.4 and 5.
15. So far as accused Nos.4 and 5 are concerned learned Addl. SPP made the submission that though they were involved, there is no evidence in the complaint or in the evidence of prosecution witnesses but it is the prosecution case that they were having a common intention, common object and accordingly one of the alleged offences is also under S.149 of IPC. Learned Addl. SPP further made the submission that the doctor who 17 conducted the autopsy over the dead body of deceased Nanjappa deposed in detail in his examination in chief but there was no cross-examination by the defence. Hence he submitted that evidence of the doctor deposed in the examination-in-chief remained unchallenged. These aspects have been properly taken care by the learned Fast Track Court Judge who properly appreciated the entire material both oral and documentary and rightly came to the conclusion in holding that prosecution proved its case beyond reasonable doubts against A1, A4 and A5 in respect of all the charges. Hence there is no illegality in the impugned order passed and no valid and justifiable grounds to interfere with the Order of conviction and sentence passed by the learned Fast Track Court Judge and submitted to dismiss both the appeals.
16. We have perused the grounds in the appeal memorandum in respect of both appeals, Judgment and Order of conviction challenged in these two appeals, oral evidence of prosecution witnesses PW1 to PW29 so also 18 the oral evidence of DW1 to DW6 and the documents produced by both sides.
17. Let us refer to the oral evidence of prosecution witnesses in order to ascertain whether prosecution is able to make out a case against appellants / accused herein and whether the learned Fast Track Court Judge is right in his approach and coming to the conclusion to convict the above three appellants herein.
18. PW-1 is the complainant by name Nanaiah and so far as the contents of the complaint is concerned, we have already made detailed reference to the contents of Ex.P3. Now coming to his oral evidence in his examination-in-chief he deposed that he filed the complaint against the appellants. He knows deceased Nanjappa and the accused who are present before the Court. At the time of incident he was carrying on a petty shop business selling beedies, cigarettes etc. On 26.09.1996 at about 7 to 7.30 p.m. when he was sitting in his shop, deceased Nanjappa was also along with him. 19 Accused namely Poonacha, Nanjappa, Biddappa, Kalappa and Kushalappa came to his shop. In the hands of Poonacha there was a bill hook and in the hands of other accused persons there were clubs. All accused persons came to his shop together. Poonacha gave a hit with the bill hook on his head over the right year. When he stretched his right hand, he was assaulted with the bill hook on his right hand and also on his arm near shoulder. When Nanjappa intervened and tried to pacify the quarrel he was pulled out from the shop and assaulted by the accused. Nanjappa sustained bleeding injuries upon his body and also left thigh and left hand. Nanjappa died on the spot itself. Nanaiah's mother-in-law by name Parvathi was present and she witnessed the incident. Though she requested the accused they did not heed to her request. The reason for this quarrel is A1 - Poonacha had borrowed a sum of Rs.500/- as hand-loan from him and he had not paid that amount in spite of repeated requests. When he demanded the amount this unpleasant event occurred. He has given the complaint Ex.P3 and his signature as per 20 Ex.P3(a). He stated that as he sustained injury to his right hand he was unable to put his signature, hence he put his left hand thumb impression on the complaint. He identified the material object Bill Hook as MO.3. He also deposed that he was able to identify his clothes which were stained with blood. Police have seized the khaki pant and shirt. In the cross-examination by the defence, he deposed that accused No.1 was holding the bill hook and the remaining accused were holding clubs. Said clubs' length is 2 ½ ft. In his presence the police did not seized the clubs. Police seized the bill hook in his presence from the spot where the incident took place on the day of the incident at 7.30 p.m. He does not know whether A1 - Poonacha sustained injuries on the date of the incident. Police came to the place of occurrence and took him to the hospital for treatment. One Bheemaiah wrote the complaint in his shop and the said complaint was handed over to the police in his shop. Till 9.00 p.m. in the night when he gave the complaint, he did not disclose the fact that the accused were holding the clubs. As per his say Bheemaiah wrote 21 the complaint, same was read over by the police to him. On the date of the incident, he has not at all visited the police station. He stated to Bheemaiah who narrated the fact that deceased Nanjappa was pulled out from his shop. He denied the suggestion that their villagers came and assaulted him and deceased Nanjappa.
19. PW-2 T.G. Subbaiah is the witness to the inquest mahazar. He deposed that on 27.09.1997 police conducted inquest over the dead body of Nanjappa as per Ex.P1 and his signature is Ex.P1(a). Nanjappa received injuries on the right and left thigh and stomach.
20. PW-3 Gowri deposed in her evidence in the examination-in-chief that Nanjappa is her husband. She knows three accused who were before the Court. Her husband was murdered about six years back. On the said date she was in her mother's house. Her husband's elder brother' son informed her about the murder of Nanjappa. She stated that Poonacha and four others joined and committed the murder and hearing the news she came to 22 the Village on the next day at 8.00 a.m. Regarding the motive she deposed that there was a marriage function of Seethamma and in that function 'valaga kunitha' (a dance by number of people) her husband had stamped the leg of Poonacha - A1 and this information is given to her by her husband about 2 to 3 months prior to his death. She did not attend the marriage of Seethamma. She was married in the year 1993. So far as the evidence of PW-3 wife of deceased is concerned, admittedly even according to her she is not the eye-witness to the incident. Her evidence is hearsay and even with regard to her husband stamping the leg of accused No.1 Poonacha is also as told by her husband to her. Therefore her evidence is not helpful to the prosecution in any way.
21. PW-4 Subbaiah deposed in his evidence that he knows both the injured Nanaiah and deceased Nanjappa. About 5 to 6 years back, he was in his house. He did not come out. He is having a poor vision so stayed back in the house itself. This witness is treated as hostile 23 and even cross-examined by the Public Prosecutor and nothing is elicited in the cross-examination. In the cross- examination he deposed that he has not given the statement as per Ex.P2. In the cross-examination by the defence, he deposed that as on the said date of the incident their village was not provided with electricity.
22. PW-5 K.M. Bheemaiah deposed in his evidence that he read the contents of the complaint. He narrated the facts as per the say of Nanaiah. Nanaiah affixed his left thumb impression. Complaint is Ex.P3. His LTM is identified as Ex.P3(a). He further deposed that on 22.09.1996 he has produced the clothes of Nanjappa. They are pant and shirt marked as MOs. 1 and 2, they were seized under the mahazar Ex.P4 and his signature is Ex.P4(a). In the cross-examination he deposed that PW-2 was present when mahazar was recorded. He has given the clothes of Nanjappa and Nanaiah both pants and shirts. He read the mahazar. He has written the contents 24 of the complaint at the Police Station. He knows that accused Poonacha also got injured.
23. PW-6 Erappa deposed in his evidence that PW- 1 is his son. He knows deceased Nanjappa. About 7 years back, at about 7.30 p.m. he was in his house and PW-1 was near the shop. Nanjappa was also present near the shop. Poonacha assaulted Nanjappa with katti. The assault was on two sides of the stomach. PW-1 received injuries to the right shoulder, right side of the eyes, forehead and to the left elbow joint. On account of the assault PW-1 fell down, Nanjappa was dragged from the said place and he was assaulted. As he is having good vision, he has seen the assault in the brightness of lights. He can identify katti if shown. He has seen the kokke katti it is the very same weapon used by Poonacha, marked as MO-3. In the cross-examination he deposed that he has seen Nanjappa after he fell down. He cannot say how many people assembled when he saw Nanjappa for the first time.
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24. PW-7 Parvathy deposed in her evidence that about six years back at about 7.00 p.m. she heard a sound when she was putting rice into the bowl for cooking food. She went out of the house but did not see who assaulted whom but only heard the sounds of quarrel. She has turned hostile and not supported the prosecution case.
25. PW-8 Aruna deposed he knows deceased Nanjappa and Nanaiah who was injured in this case. At the time of the incident he was at his house which is at a distance of 1½ k.m. between his house and the place of occurrence. He heard the shouting of the injured who were fallen on the ground due to injuries in a pool of blood. In the cross-examination he accepted the suggestion that there is a lane of Kumbara families about 25 families situated near the spot. The injured and deceased fell down on the road which is leading to Murnad. The police have not recorded his statement.
26. PW-9 Bheemaiah turned hostile and not supported the prosecution case.
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27. PW-10 Mandanna deposed in his evidence that police called him to the Police Station on 02.10.1996. It was 8.30 to 9.00 a.m. A1 - Poonacha was present at the Police Station. They took them to Bethri Village. At that time co-pancha by name Aiyappa and one Ranjan were also present along with them. They reached the Estate of Gopal. A1 produced one bill hook from fallen dried leaves. It was stained with blood but dried. Police have drawn the mahazar - Ex.P7 and his signature is Ex.P7(a). MO.3 is the same weapon seized. He is able to identify the accused No.1 Poonacha who is present before the Court. He admitted the suggestion that CPI told him that he has to accompany him to the garden land of Gopal to seize the bill hook and the said garden land is the open coffee shop. The CPI told accused No.1 to go there and take the bill hook. However he denied the suggestion that he put his signature in the Police Station and he did not go to the place as stated by him in his examination-in-chief. 27
28. PW-11 Vijaya turned hostile and not supported the prosecution case.
29. PW-12 Dr. Kishor Kumatakar deposed in his evidence that on 27.09.1996 he conducted post mortem over the dead body of Nanjappa and found in all five injuries on the dead body. Injury Nos. 1 and 2 were grievous in nature and other simple injuries. Accordingly he issued the post-mortem report as per Ex.P9. On 24.10.1996 one Head Constable produced bill hook MO.3. The injuries which he has shown in post-mortem report Ex.P9 may be caused by MO.3 and accordingly he entered his opinion under Ex.P10.
30. PW-13 Dr. A.B. Puttaswamy deposed that on 27.09.1996 at about 5.30 a.m. he examined and treated injured by name Nanaiah, aged 28 years. While examining the patient was conscious. He sutured the wounds and applied POP. He took X-ray on the right elbow of the injured. In the cross-examination he admitted the 28 suggestion that he has not mentioned the name of the patient in the examination case sheet.
31. PW-14 Dr. Radhakrishna deposed in his evidence that on 27.09.1996 he treated patient by name Nanaiah. The patient was conscious, answered the questions and remembered the subsequent events. On opening the dressings on the scalp he found the injury on the right temporal region above the right ear about 6 inches in length, severing skin and muscle. Bleeding was present from the muscles.
32. PW-15 M.T. Leela is the person who issued the Residential Certificate of Nanaiah under Ex.P11. There is no cross-examination of this witness.
33. PW-16 P.B. Somanna, Police Constable deposed that on 01.10.1996 he was deputed to trace out the accused person. Accused No.1 was admitted to Government Hospital and after his discharge from the hospital he has arrested him and produced before the CPI. 29 He submitted the report as per Ex.P12. There is no cross- examination of this witness.
34. PW-17 K.S. Anil Kumar is the Police Constable who went to the Mysuru and got the photographs developed from the negatives and produced before the I.O. The photographs were marked as Exs.P14 to P17 and negatives were marked as Exs.P14(a) to P17(a). He denied the suggestion put by the defence that he was not entrusted with the work to get the positive photographs and no photos were taken in regard to the said aspect.
35. PW-18 P.A. Appaji another Police Constable has deposed with regard to he guarding the dead body of the deceased at Hemmaru Village. He has further deposed that on 01.10.1996 he has arrested accused No.1. In his cross-examination he has admitted that accused No.1 was also admitted to Government Hospital, Virajpet as he had sustained injuries.
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36. PW-19 J.K. Raja, Head Constable deposed that he wrote the seizure mahazar marked as EX.P8 as per the dictation of CPI and they seized one full sleeve shirt belonging to accused - Biddappa and on 01.10.1996. In the cross-examination he denied the suggestion that accused has not at all given the voluntary statement. He denied the further suggestion that there is no connection of MO.3, MO.4 and MO.5 with the accused. He further denied the suggestion that he had not at all been to the spot and not drawn the mahazar and mahazar was prepared at the Police Station.
37. PW-20 K.Y. Hameed, Head Constable who took the photographs of the dead body deposed that he accompanied with PWD Engineer to the spot and drawn the sketch.
38. PW-21 M.G. Raju, Police Constable deposed that he along with one Constable Anil Kumar - CW.30 got developed the photos from Mysore along with negatives and produced before the CPI, Virajpet, who in turn 31 conducted the seizure mahazar. Seizure mahazar is marked as Ex.P13. In the cross-examination he denied the suggestion that at the instance of his superiors he was deposing falsely.
39. PW-22 Mariswamy, Head Constable is the person who wrote the Inquest mahazar as per the dictation given by the CPI. They carried the blood stained mud and seized the clothes of the deceased. He also wrote the seizure mahazar of the clothes of the complainant under Ex.P4. As per the directions of the CPI he carried the bill hook which was sealed before the Medical Officer. In the cross-examination he denied the suggestion that he had not at all been to the spot, nor carried MO.3 - bill hook to the doctor.
40. PW-23 Dr. Vidyadhar deposed that on 27.09.1996 at 2.10 a.m. Virajpet Rural Police brought one injured by name Nanaiah of Hemmadu Village with history of assault with sharp edged weapon. He noticed three injuries. He referred the patient to major hospital for 32 blood transfusion. He issued the medical certificate to that effect as per Ex.P8. In the cross-examination he admitted that he has also treated Poonacha - accused No.1 on 26.09.1996 at 10.30 p.m. On examination he found four injuries caused to A1. Accordingly he mentioned the said injuries in the hospital accident register marked as Ex.D1. Injury No.3 sustained by A1 is grievous in nature and remaining three injuries are simple in nature.
41. PW-24 Boregowda, Assistant Executive Engineer deposed that on a requisition from Virajpet Police he went to the place of occurrence and drawn the sketch as per Ex.P19.
42. PW-25 Ramdas, CPI / IO deposed in the examination-in-chief about the investigation he conducted and in the cross-examination he deposed that records disclose that the counter case was registered against the deceased and injured Nanaiah and deceased Nanjappa. One Head Constable Somaiah recorded the statement of complainant i.e., accused No.1.
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43. PW-26 Mithra Heraje then CPI at Virajpet Circle, deposed that on 02.09.2000 he received the serological report from Calcutta through FSL Bangalore and marked the same as Ex.P21. On 05.09.2001 he submitted the said serological report before the Court and submitted the additional charge-sheet to implicate the witness as a co-witness and the said additional charge-sheet is marked as Ex.P22.
44. PW-27 R. Ananda another I.O. in the case deposed about the investigation that he conducted in the matter and in the cross-examination he deposed that he did not come across the accused No.1 sustaining head injury during investigation or that he was admitted to hospital for treatment. He was not aware that the case was a counter case against PW-1. However, he admitted that PW-1 informed him that on 26.09.1996 accused No.1 was treated by doctor by name Vidyadhar.
45. PW-28 Dr. shubra Chakravarthy, working as Assistant Serologist in the Institute of Serology, Kolkata, 34 deposed about having received some articles from FSL authorities, Karnataka through post. On verification she found 14 articles in total. The specimen and seals of the articles was intact and she gave the serology report as per Ex.P21. In the cross examination she denied the suggestion that no articles were sent for chemical examination from Virajpet Police Station and she has not examined any articles.
46. PW.29 M.S. Girish Kumar, Police Constable carried the FIR and submitted before the Magistrate Court on 27.09.1996.
47. We have also perused the oral evidence of DW1 to DW6. The witnesses who have been examined on the side of the prosecution, the same witnesses were examined as DW1 to DW6.
48. Perusing the prosecution material and as rightly submitted by the learned Amicus Curiae that so far as accused Nos.4 and 5 are concerned except one 35 sentence in the complaint Ex.P1 that they were standing and witnessing the incident, nothing material is placed by the prosecution as against them. We have carefully examined the entire prosecution material both oral and documentary and there is no evidence as against them about their involvement in the commission of the alleged offence. Even with regard to the common object for the alleged offence under S.149 of IPC also none of the witnesses have spoken about the same that the accused were having the common object and in furtherance of the common object the said incident has taken place. Therefore we are of the opinion that so far as appellant Nos.4 and 5 are concerned, prosecution miserably failed to make out a case about their involvement in the alleged offences. Therefore the learned Sessions Judge is wrong in coming to the conclusion in holding that prosecution proved the case even against accused Nos.4 and 5 for the said offence and convicting them also. Hence the Judgment and Order of conviction so far as it relates to accused Nos.4 and 5, we are of the clear opinion that there 36 is no supporting material on the side of the prosecution and the finding of the learned Fast Track Court Judge as against them is without any basis. Hence, to that extent the Judgment of the Fast Track Court is not sustainable in law and it is liable to be set aside. So far as accused No.1 is concerned though it is contended by the learned Amicus Curiae that even against accused No.1 there is no material placed by the prosecution which is acceptable and credit worthy but it is the defence itself which came up with the case that Accused No.1 also sustained injuries and the doctor who was examined before the Court deposed that accused No.1 Poonacha sustained four injuries in all, one grievous and other simple injuries. Even it was suggested that there was a counter case which was also registered on the complaint of accused No.1 Poonacha. But looking to the materials it has come on record that police after conducting investigation on the complaint of accused No.1
- Poonacha, filed the 'B report'. Regarding the presence of accused No.1 at the place of offence, injured PW-1 clearly deposed in his evidence that accused No.1 came holding 37 bill hook in his hand, assaulted him and deceased Nanjappa. The defence was not at all able to make out a case that PW-1 is deposing falsely and there is a false implication of accused No.1. There was no reason for the injured PW-1 to screen the real culprit by substituting some other person in his place. With regard to motive the prosecution placed the material that so far as injured PW-1 is concerned accused No.1 was having enmity in connection with an amount of Rs.500/- which he had borrowed from PW-1 and not returned that and regarding deceased Nanjappa the prosecution also placed on record that in one marriage function of the daughter of one Seethamma there was a dance function in that process the deceased Nanjappa stamped on the leg of accused No.1 - Poonacha and for that reason accused No.1 was having grudge towards deceased Nanjappa. So regarding the motive aspect the prosecution placed that material. Apart from that when there is a direct witness PW-1 who is injured witness, his evidence is worth believable and which also gained support from the defence plea that accused 38 No.1 also sustained injuries. The presence of accused No.1 at the spot cannot be disputed by the defence. We have considered the evidence of the doctor who treated the injured PW-1. He has deposed about the injury sustained by PW-1 and regarding deceased Nanjappa, the doctor who conducted the autopsy over the dead body has been examined and he has also deposed about what are the injuries noticed over the dead body of Nanjappa. The said doctor was not cross-examined by the defence.
49. We have also perused the Judgment relied upon by the learned Amicus Curiae reported in 2016 (3) SCC 317 rendered in the case of NANKAUNOO Vs. STATE OF UTTAR PRADESH. We also perused the relevant paragraphs in the said decision at para Nos.10, 11, 12 and 13 to which our attention was drawn by the Amicus Curiae. Looking to the material placed on record the doctor who conducted the autopsy over the dead body of the deceased in the post mortem report as per Ex.P9, has given his opinion regarding the cause of death. The cause of death 39 is shock and hemorrhage as a result of injuries mentioned. What are the external injuries is also specifically mentioned by the doctor in the post mortem report. The injury Nos.(i) and (iii) are serious whereas the injury nos.
(ii) (iv) and (v) are simple injuries. The injury No.1 reads as under:
(i) Incised injury of 4" x 1" x ½" over the left femoral region 1" below the left inginal ligament femoral artery & vein was cut muscles & fascia was cut. Clots were present."
Injury No.3 reads as under:
" Incised injury of 1" x 2" over the right lower part at the thigh (anterior) muscles & fascia was cut."
50. These aspects go to show that the prosecution was not able to make out a case through the evidence of the doctor. The prosecution has not elicited from the doctor's evidence that the incised injury on the left thigh caused rupture of any important blood vessel and that it was sufficient in the ordinary course of nature to cause 40 death. In the case on hand, as we have observed that injury Nos. 1 and 3 according to the doctor are serious in nature. But the doctor has not specifically stated in his oral evidence that said injuries are sufficient in the ordinary course of nature to cause death. Even in the contents of the post mortem report, none of the doctors who treated the injured have spoken about the cause of death, the cumulative effect emerging out of the injuries. Apart from that there is no cross-examination by the defence with regard to doctor's evidence in examination- in-chief. Therefore looking to all these materials We are of the opinion that the factual matrix in the case of NANKAUNOO relied upon by learned Amicus Curiae and the factual matrix in the case on hand are not one and the same and therefore the said decision will not come to the aid of defence.
51. However, the material on record clearly goes to show that accused No.1 Poonacha assaulted not only PW-1 the injured eye witness but also assaulted the 41 deceased Nanjappa with club MO.3 which was seized. We have also perused the serology report which shows that the clothes were blood stained and the blood stains on some items are disintegrated. The FSL authorities have mentioned the said fact in the serology report as per Ex.P21.
52. Apart from that, when there is the injured witness who clearly deposed that with the material object MO.3 he was assaulted by accused No.1. Even if there is no proper mention about blood stains through the Serology Report, the entire case of the prosecution cannot be rejected only on that ground. Looking to the materials We are of the opinion that prosecution placed the material so far as accused No.1 Poonacha is concerned about his involvement in committing the offence, about his intention that he carried MO.3 along with him to the place of offence. It clearly goes to show his intention that he wanted to commit murder thereby he caused death of Nanjappa and made an attempt to commit the murder of PW-1 the complainant also.
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53. These aspects were rightly appreciated by the learned Fast Track Court Judge in so far as the Judgment with regard to appellant - accused No.1 is concerned. Therefore the contentions of learned Amicus Curiae that the offence will not fall under S.302 IPC and it will come under S.304 Part II of IPC cannot be accepted at all. Learned Fast Track Court Judge considered all these aspects extensively and rightly came to the conclusion in holding that accused No.1 is guilty of the offences charged against him. Therefore we do not find any illegality in the Judgment of the Fast Track Court so far as it relates to appellant - accused No.1. There are no valid and justifiable grounds for this Court to interfere with the Judgment of the Fast Track Court relating to the case of accused No.1 herein. Accordingly the appeal in No.1338/2012 is hereby dismissed and appeal in No.188/2013 pertaining to accused Nos.4 and 5 is hereby allowed. The Judgment and Order of conviction passed by the learned Fast Track Court Judge as against accused 43 Nos. 4 and 5 is hereby set aside and accused Nos.4 and 5 are acquitted of all the charges.
The accused 4 and 5 shall be released forthwith if they are in custody and not required in any other case. On the other hand, if accused Nos.4 and 5 are on bail, their bail bonds shall stand cancelled.
We place on record the valuable assistance of the learned Amicus Curiae Sri S.G. Rajendra Reddy and High Court Registry is hereby directed to pay him an amount of `10,000/- as honorarium.
Sd/-
JUDGE Sd/-
JUDGE sac*