Karnataka High Court
The State Through Wadi Police Station vs Rayappa S/O Khandapa Kwaliba And Ors on 11 August, 2022
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF AUGUST 2022
PRESENT
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
CRIMINAL APPEAL No.3634/2013
BETWEEN:
The State through
Wadi Police Station
Represented by
Addl. State Public Prosecutor, Gulbarga
... Appellant
(By Sri. Prakash Yeli, Additional State Public Prosecutor)
AND:
1. Rayappa S/o Khandappa Kwaliba
Age: 62 years, Occ: Agriculture
2. Raju S/o Rayappa Kwalibanoor
Age: 30 years, Occ: Agriculture
3. Sakkubai W/o Rayappa Kwalibanoor
Age: 60 years, Occ: Household
4. Ravikumar S/o Ramachandra Samaka
Age: 28 years, Occ: Coolie work
*5. Parvti D/o Rayappa Kwalibanoor
Age: 37 years, Occ: Household
All are R/o Balawadi, now at near Kamalibab Darga, Wadi.
... Respondents
(By Sri. M.M. Allur, Advocate)
* Corrected vide Order dated 14/9/2022.
Crl.A.No.3634/2013
2
This Criminal Appeal is filed under Section 378 (1) and (3)
of the Code of Criminal Procedure, 1973, praying to grant leave
to appeal against the judgment dated
26.09.2012 passed by the Principal Sessions Judge at Gulbarga
in Sessions Case No.49/2011 thereby acquitting the
respondents/accused for offences punishable under Sections
143, 147, 148, 447, 323, 324, 325, 307, 504 and 506 R/w
Section 149 of IPC; to set aside the judgment of acquittal dated
26.09.2012 passed by the Principal Sessions Judge at Gulbarga
in Sessions Case No.49/2011 and convict the
respondents/accused for the offences punishable under Sections
143, 147, 148, 447, 323, 324, 325, 307, 504 & 506 R/w
Section 149 of IPC.
This Criminal Appeal coming on for final hearing this day,
Dr.H.B. Prabhakara Sastry J. delivered the following:
JUDGMENT
The present respondents/accused were tried by the Court of the learned Principal Sessions Judge at Gulbarga (hereinafter for brevity referred to as "the Trial Court") in Sessions Case No.49/2011, for the offences punishable under Sections 143, 147, 148, 447, 323, 324, 325, 307, 504 and 506 R/w Section 149 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as "the IPC") and Crl.A.No.3634/2013 3 the said Trial Court, by its judgment dated 26.09.2012, acquitted the accused of the offences charged against them. It is against the said judgment of acquittal, the complainant-State has preferred this appeal.
2. The summary of the case of the prosecution in the Trial Court was that, on the date 30.10.2009 at about 1.30 p.m. in the land bearing Sy.No.82/E of Balwadagi village within the limits of the complainant Police Station, the accused along with deceased accused No.6-Sharada constituting an unlawful assembly with the common object of committing the murder of complainant-Vijayreddy, committed the offence of rioting and at that time they were armed with deadly weapons like axe, sticks and stones. The accused also committed criminal trespass of the said land bearing Sy.No.83/E and voluntarily caused hurt to the complainant-Vijayreddy, CW-4 - Maruti and CW-6 - Yadavreddy.
It is the further case of the prosecution that at the time of incident, accused No.1 voluntarily caused hurt to Crl.A.No.3634/2013 4 complainant-Vijayreddy with axe on his head and accused No.2 voluntarily caused hurt to CW-6 - Yadavreddy with stick and assaulted him on his head and left thigh. Accused Nos.3 to 5 along with abated accused No.6 also assaulted Vijayreddy and Yadavreddy with stones. In the process, accused No.5 voluntarily caused grievous hurt to CW-6 - Yadavreddy by assaulting him with stones on his face and accused No.1 assaulted the complainant with an axe on his head with an intention to commit his murder. Further, the accused also intentionally insulted the complainant and threatened CW-1 and CW-6 and thereby have committed the offences punishable under Sections 143, 147, 148, 447, 323, 324, 325, 307, 504 and 506 R/w Section 149 of IPC.
3. The respondents/accused were charge sheeted for the offences punishable under Sections 143, 147, 148, 447, 323, 324, 325, 307, 504 and 506 R/w Section 149 of IPC. Since the accused pleaded not guilty, charges were framed against them for the said offences. Crl.A.No.3634/2013 5
4. In order to prove the alleged guilt against the accused, the prosecution got examined in all twelve (12) witnesses as PW-1 to PW-12 and got marked documents from Exs.P-1 to P-14 and Material Objects at MO-1 to MO-13. From the accused's side, neither any witness was examined nor any documents were marked as exhibits. After hearing both side, the Trial Court, by its judgment dated 26-09-2012, acquitted the accused of the offences punishable under Sections 143, 147, 148, 447, 323, 324, 325, 307, 504 and 506 R/W Section 149 of IPC. Challenging the same, the prosecution has preferred the present appeal.
5. The respondents/accused are being represented by their learned counsel.
6. The Trial Court's records were called for and the same are placed before this Court.
7. Heard the arguments from both side. Perused the materials placed before this Court including the Crl.A.No.3634/2013 6 memorandum of appeal, impugned judgment and the Trial Court's records.
8. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court.
9. After hearing both side, the points that arise for our consideration in this appeal are:
i) Whether the prosecution has proved beyond all reasonable doubt that on 30.10.2009 at about 01.30 p.m. in the land bearing Sy.No.82/E situated within the limits Balwadagi village, accused Nos.2 and 5 along with abated accused Nos.1, 3, 4 and 6 were members of an unlawful assembly, the common object of which was to commit murder of complainant-Vijayreddy and thereby committed an offence punishable under Section 143 of IPC?
ii) Whether the prosecution has proved beyond all reasonable doubt that on the above said date, time and place, accused Nos.2 and 5 along with abated accused Nos.1, 3, 4 and 6 were member of an Crl.A.No.3634/2013 7 unlawful assembly, and did, in prosecution of the common object of such assembly i.e., in order to commit murder of complainant -
Vijayreddy committed the offence of rioting and at that time they were armed with deadly weapons like Axe, Sticks and stones and thereby committed an offence punishable under Section 147 and 148 of IPC?
iii) Whether the prosecution has proved beyond all reasonable doubt that on the above said date, time and place, accused Nos.2 and 5 along with abated accused Nos.1, 3, 4 and 6 being the members of an unlawful assembly and in prosecution of the common object of such assembly, committed criminal trespass over the land bearing No.82/E which belongs to complainant - Vijayreddy and thereby committed an offence punishable under Section 447 R/w Section 149 of IPC?
iv) Whether the prosecution has proved beyond all reasonable doubt that on the above said date, time and place, accused Nos.2 and 5 along with abated accused Nos.1, 3, 4 and 6 being the members of an unlawful assembly and in prosecution of the common object of such assembly, accused Nos.2 and 5 along with abated accused Nos.1, 3, 4 and 6 Crl.A.No.3634/2013 8 voluntarily caused hurt to complainant -
Vijayreddy, CW.4 - Maruti and CW.6 -
Yadavreddy with hands on their bodies and thereby committed an offence punishable under Section 323 R/w Section 149 of IPC?
v) Whether the prosecution has proved beyond all reasonable doubt that on the above said date, time and place, accused Nos.2 and 5 along with abated accused Nos.1, 3, 4 and 6 being members of an unlawful assembly and in prosecution of the common object of such assembly, accused No.1 voluntarily caused hut to complainant-Vijayreddy by means of an axe on his head, accused No.2 voluntarily caused hurt to CW.6 - Yadavreddy by means of stick on his head and left thigh causing bleeding injuries, accused 5 along with abated accused Nos.3, 4 and 6 voluntarily caused hurt to complainant - Vijayreddy and CW.6 -
Yadavreddy by means of stones and thereby committed an offence punishable under Section 324 R/w Section 149 of IPC?
vi) Whether the prosecution has proved beyond all reasonable doubt that on the above said date, time and place, accused Nos.2 and 5 along with Crl.A.No.3634/2013 9 abated accused Nos.1, 3, 4 and 6 being members of an unlawful assembly and in prosecution of the common object of such assembly, accused Nos.2 and 5 voluntarily caused grievous hurt to CW.6 - Yadavreddy by means of stones on his face and thereby committed an offence punishable under Section 325 R/w Section 149 of IPC?
vii) Whether the prosecution has proved beyond all reasonable doubt that on the above said date, time and place, accused Nos.2 and 5 along with abated accused Nos.1, 3, 4 and 6 being members of an unlawful assembly and in prosecution of the common object of such assembly, accused No.1 did an act of assault with an Axe to complainant - Vijayreddy on his head, with an intention and under such circumstances, that if by the act he had caused the death of complainant - Vijayreedy, he would have been guilty of murder and thereby committed an offence punishable under Section 307 R/w Section 149 of IPC?
viii) Whether the prosecution has proved beyond all reasonable doubt that on the above said date, time and place accused Nos.2 and 5 along with abated accused Nos.1, 3, 4 and 6 being members of an Crl.A.No.3634/2013 10 unlawful assembly and in prosecution of the common object of such assembly, intentionally insulted and gave provocation to CW.1 -
Vijayreddy and CW.6 - Yadavreddy, by abusing them as "ªÀÄPÀ¼ Û jÛ " intending that Ì Éà ¤ÃªÀÅ ºÁåAUÀ ºÉÆ® ©vÀÄw such provocation would cause them to break the public peace and thereby committed an offence punishable under Section 504 R/w Section 149 of IPC?
ix)Whether the prosecution has proved beyond all reasonable doubt that on the above said date, time and place, accused Nos.2 and 5 along with abated accused Nos.1, 3, 4 and 6 being members of an unlawful assembly and in prosecution of the common object of such assembly, committed criminal intimidation by threatening complainant - Vijayreddy and CW.6
- Yadavreddy with injury to their person with intend to cause alarm to them to take their lives and thereby committed an offence punishable under Section 506 R/w Section 149 of IPC?
x) Whether the judgment under appeal deserves any interference at the hands of this Court? Crl.A.No.3634/2013 11
10. At the time of argument, it was submitted by the learned counsel for the respondents that during the pendency of this appeal, respondent Nos.1, 3 and 4 passed away. Subsequently, both side have also filed memos along with death certificates of respondent Nos.1, 3 and 4. As such, the appeal as against respondent Nos.1, 3 and 4 stands abated.
11. The learned Additional State Public Prosecutor, in his brief argument, submitted that apart from the injured PW-1 and PW-2, the Tractor driver i.e., PW-3 and PW-9, PW-10 and PW-11 are the eyewitnesses to the incident. All these eyewitnesses have fully supported the case of the prosecution. The evidence of injured witnesses is further corroborated by the medical evidence. However, the Trial Court failed to appreciate the evidence in its proper perspective, as such, the impugned judgment of acquittal came to be pronounced, which requires interference at the hands of this Court. Crl.A.No.3634/2013 12
12. Per contra, learned counsel for the respondents, in his argument, submitted that the Trial Court has rightly noticed the lot of lacunas in the case of the prosecution. The prosecution did not establish the exact place of alleged offence and the alleged possession of the lands said to be ploughed by PW-1. The evidence of material witnesses since does not inspire confidence to believe, the Trial Court has rightly suspected their evidence. He further submits that the wound certificate does not correspond with the injuries explained by the injured. Finally, stating that the alleged evidence of PW-9, PW-10 and PW-11 does not inspires confidence to believe and that there is no acceptable evidence to believe that they were present at the time of incident, learned counsel submitted that the Trial Court has rightly pronounced the judgment of acquittal, which does not warrant any interference at the hands of this Court.
13. Among the 12 witnesses examined by the prosecution to prove the alleged guilt against the accused, Crl.A.No.3634/2013 13 the material witnesses, who speaks about the incident are PW-1 - Vijayreddy, PW-2 - Yadav Reddy, PW-3 - Channappa, PW-9 - Vijaykumar, PW-10 - Hanmanth and PW-11 - Yallappa. According to prosecution, PW-1 and PW-2 are injured witnesses. PW-3 was the driver of the Tractor, who was assisting the PW-1 and PW-2 in cultivating the land at the time of incident. PW-9, PW-10 and PW-11 are said to be the employees of PW-1 working in a nearby quarry and they too are said to have rushed to the spot and seen the incident.
14. PW-1 - Vijayreddy (CW-1) has not disappointed the prosecution. In his examination-in-chief he has stated that on the date 30.10.2009 he was in his landed property bearing Sy.No.82/E of Balwadagi village and was carrying on the activity of sowing along with his uncle Yadavreddy (PW-2) and Channappa (PW-3). At that time, in the afternoon, all the accused armed with weapons like club and axe entered the land and objected for him to cultivate the land. Apart from objecting it, accused No.1 questioning Crl.A.No.3634/2013 14 the complainant as to why he is cultivating the land, assaulted him on his head with an axe, which he was possessing with him. He also assaulted him on his both the hands. The witness has further stated that accused No.2 assaulted his uncle Yadavreddy (PW-2) with a club and injured him. Other accused also assaulted him with an axe and stone. At that time, CW-8, CW-9 and CW-10 came to the land to rescue these assaulted persons, however, accused abused them also in filthy language and threatened them. CW-7 was also assaulted by the accused.
The witness further stated that he informed the same to the police over his cell phone from the spot. The police came to the spot. Having seen the police coming to the land, the accused ran away from the spot. The witness stated that in the incident the clothes worn by him got blood stained. However, the police shifted them to the hospital and got them the medical treatment. It is in that regard, he lodged a complaint. The witness identified the complaint at Ex.P-1. He also stated that the police seized Crl.A.No.3634/2013 15 the blood stained clothes worn by him at the time of incident. The witness has identified the two wooden clubs at MO-1 and axe at MO-2 as the weapons with which he was said to have been assaulted by the accused. He also identified the clothes at MO-3 to MO-5 stating that they were the dress material worn by him at the time of incident. Identifying a broken spectacle at MO-6, he has stated that it was the one worn by him at the time of incident, which also got damaged by the act of the accused. The witness also identified six stones of handful size at MO-7 stating that they were the stones with which they were assaulted. By identifying the shirt button at MO-8 as the button of his shirt worn at the time of incident, with respect to the motive, the witness has stated that the land where the incident has taken place was purchased by his father few years prior to the incident. However, the accused claiming that it was the land belonging to them were continuously objecting for the complainant cultivating the said land. In that regard, a civil suit was also pending between them, wherein the Court Crl.A.No.3634/2013 16 had passed an interim order on an interlocutory application. The witness was subjected to detailed cross- examination, wherein he adhered to his original version.
15. PW-2 - Yadavreddy (CW-6) corroborating the evidence of PW-1 has stated that at the time of incident, he too was present along with PW-1 in the spot. About the incident he has also narrated that all the accused apart from entering the land duly armed with weapons like clubs and axe assaulted them. The witness giving the description of the alleged incident stated that accused No.1 assaulted PW-1 with an axe on his head. When he (this witness) went to rescue PW-1 from accused No.1, then accused No.4 assaulted him with club on his leg. Accused No.5 assaulted him with stone on his mouth for which he sustained fracture of teeth. Accused also assaulted him on the various parts of his body. This witness also stated that the clothes worn by him sustained blood stain in the incident. CW-7, who was present in the spot, brought the neighbors to the place of incident, who rescued them. This Crl.A.No.3634/2013 17 witness also identified MO-1, MO-2 and MO-7 as the weapons used by the accused in assaulting them. The witness has identified the clothes at MO-9 to MO-12. In his cross-examination from the accused side, the witness adhered to his original version.
16. PW-3 - Channappa (CW-7) in his evidence has stated that at the time of incident he had accompanied PW-1 and PW-2 and helping them in cultivating the land. It was at that time, the accused entered the land and assaulted them with club and axe. This witness also has given the description of the assault and stated that accused No.1 assaulted PW-1 with an axe on his head and inflicted injury. PW-2 was also assaulted on his head and right leg with the clubs. The lady accused assaulted him (this witness) with a club on his leg. However, after beaten by her, he ran away from the land. The witness further stated that their people working in a nearby quarry also came to the spot and they too were assaulted by the accused. This witness has identified MO-1, MO-2 and Crl.A.No.3634/2013 18 MO-7 as the weapons used by the accused in the commission of crime.
17. PW-9 - Vijaykumar (CW-8), PW-10 - Hanmanth (CW-9) and PW-11 - Yallappa (CW-10) in their evidence have stated that they were working in a nearby quarry to the place of incident. However, after coming to know about the incident, they came to the spot.
18. PW-9 has stated that when he rushed to the rescue of PW-1 and PW-2, the accused threatened him and assaulted him also, as such, he had to stay away from them. Since the police came to the land, after seeing them, the accused ran way from the place. Stating so, PW-9 has identified the weapons at MO-1, MO-2 and MO-7. He stated that CW-9 and CW-10 (PW-10 and PW-11) were also present with him in the spot.
19. PW.10 also stated that seeing the people running towards the spot, he too followed them and saw that accused No.1 was assaulting the PW-1 and PW-2 with Crl.A.No.3634/2013 19 an axe. He stated that the other accused assaulted PW-1 and PW-2 with clubs and stone. When these people attempted to rescue PW-1 and PW-2, but they too were assaulted by the accused.
20. The evidence of PW-11 is also on the lines of PW-9 and PW-10, who too has stated that PW-1 and PW-2 were assaulted by the accused inflicting the injuries upon them in which process a tooth of PW-2 got broken. The witness stated that it was himself along with PW-9 and PW-10 had gone to the spot and rescued PW-1 and PW-2.
All these three witnesses were cross-examined from the accused side, where certain statements were elicited from the accused about the incident, in his attempt to shaken the creditworthiness of evidence of PW-9, PW-10 and PW-11.
21. An analysis of evidence of PW-1, PW-2, PW-3, PW-9, PW-10 and PW-11 would go to show that PW-1 and PW-2 have been shown as the injured witnesses Crl.A.No.3634/2013 20 throughout. All these material witnesses have stated that it is PW.1 and PW-2 who were assaulted by the accused. Though PW-3 too has stated that he too was assaulted by a lady accused, but there is no further detail in that regard given either by PW-3 or by other witnesses. However, the evidence regarding the occurrence of incident and assaulting of PW-1 and PW-2 by the accused have come uniformly in the evidence of PW-1, PW-2 and PW-3. These witnesses have specifically stated that all the accused entered the land bearing Sy.No.82/E of Balwadagi village armed with weapons like axe and club at the time when PW-1 and PW-2 were cultivating the said land.
22. Learned counsel for the respondents, in his argument, submitted that since PW-1 has specifically stated and shown that the said land was purchased by his father, accused cannot claim that they were the owners of the land and the contention of the prosecution that the incident has taken place at any particular place has not been established by it beyond doubt. He submitted that Crl.A.No.3634/2013 21 there is a discrepancy as to whether the incident has taken place on the left side of the road or on the right side of the road, since the property was spread over either side of the road.
No doubt, it has come in the evidence of prosecution, more particularly through PW-1 that the property bearing Sy.No.82/E was spread on the either side of the road. Some of the witnesses have stated that incident has taken place on that portion of the property which was on the left side of the road, whereas two others witnesses have stated that it was that portion of the property which was on the right side of the road. However, none of these witnesses have stated as to how do they consider the location of the property either on the left side or on the right side by taking that particular point of view as the center point from which they are considering the direction of the location of the property. It is because when the property is viewed from standing on one side of the road, the spot of the incident can be said to be falling on the right side, but if the Crl.A.No.3634/2013 22 same spot is viewed from the other side of the road, the very same location would fall on the left side of the road. In such an event, merely because some of the witnesses have referred the said location as the property situated on the right side and few other as left side, that itself cannot be considered as a discrepancy weakening the case of prosecution. However, there is no ambiguity in all these witnesses identifying the property as the one bearing Sy.No.82/E of Balwadagi village. Even according to PW-1, the said property was divided into two portions, one measuring 2 acres 10 guntas and another measuring 2 acres 20 guntas. Therefore, there is no doubt with respect to the place of occurrence of the incident as the land bearing Sy.No.82/E of Balwadagi village. Thus, the argument of the learned counsel for the respondents on the said point is not acceptable.
23. PW-1, PW-2 and PW-3 have uniformly stated that all the accused entered the property armed with clubs and an axe. According to these three witnesses, accused Crl.A.No.3634/2013 23 No.1 was holding an axe in his hand. PW-1 and PW-2 have specifically stated that after entering the land, the accused objected for PW-1 and PW-2 carrying cultivation in the said property. Thus, their evidence would go to show that the accused came together with a common object and an objection for PW-1 and PW-2 cultivating the property.
24. Both PW-1 and PW-2 and also PW-3 have uniformly stated that apart from objecting, accused No.1 assaulted PW-1 with an axe. He was assaulting on the head of PW-1 and also on his hands and inflicted the injury upon him. They have further stated that PW-2 was also assaulted by the accused with the club inflicting the injury upon him. There is uniformity among all these three witnesses in describing as to which accused made use of which weapon and how he assaulted PW-1 and PW-2.
25. The said evidence of PW-1 and PW-2 that they were assaulted in the incident and they sustained injuries is further corroborated by the evidence of Dr.Amruth, who was examined as PW-8 (CW-14). The said witness in his Crl.A.No.3634/2013 24 evidence has stated that being the Medical Officer in the Government Hospital at Wadi, Taluk Chittapur, on 30.10.2009 in the evening he has examined both PW-1 - Vijayreddy and PW-2 - Yadavreddy, who were brought by the Wadi police with the history of assault. The witness has stated that on examination of PW-1 - Vijayreddy, he noticed the following injuries:
1) Cut Lacerated wound on the frontal region of the scalp size 2½" x ½ " x ½ ".
2) Multiple Abrasion and contusion over the both side of back in multiple direction size of ranging from 8" to 4" x 2½". 6 to 9 in number.
3) Multiple Abrasion over the chest and Abdomen of size ranging from 8" x 3½ " to 4" x 2". Brownish red in colour, 7 to 8 in numbers.
4) Contusion over the right hand of size 6" x 2½ " x 1 ½ " colour brownish red in colour.
The witness has further stated that injured Vijay Reddy was referred to Government General Hospital, Crl.A.No.3634/2013 25 Gulbarga, where an X-ray was taken upon him and the report of which shown that his right forearm had sustained fracture of 1st phalynx of index finger. The doctor has opined that among the above injuries, first three were simple in nature and the fourth injury was grievous in nature. According to the witness, those injuries were fresh caused within three hours prior to their examination. The witness has stated that those injuries are possible to be caused when assaulted with a sharp and hard object. He has identified Ex.P10 stating that it was the wound certificate issued by him with respect to examination of Vijayreddy (PW-1).
26. The very same doctor (PW-8) has also stated that on the very same day i.e., on 30.10.2009, he has also examined injured Yadavreddy, who also brought along with PW-1 by the Wadi police. On the examination of Yadavreddy (PW-2), he noticed the following injuries upon him:
1) Cut Lacerated wound on the right side of temporal region of size 2 ½" x ½ " x ½ " .Crl.A.No.3634/2013 26
2) Multiple Abrasion and contusion over the back in multiple direction size of ranging from 6" to 4" x 2½" brownish red in colour.
7 to 9 in numbers.
3) Multiple Abrasion over the chest and Abdomen of size ranging from 6" x 4" x 2 ½"
brownish red in colour, 6 to 8 in numbers.
4) Abrasion and contusion over the upper jaw, 2nd incisor tooth size 2 cm x 3 ½ ". bright red in colour.
The witness has stated that injuries found on PW-2 were also fresh caused within three hours prior to their examination, at the time of incident. He has opined that all those injuries were simple in nature and identified the wound certificate issued by him in that regard at Ex.P11. After seeing the axe at MO-2 and stones at MO-7, the witness has stated that they may cause cut lacerated wounds. Further, the witness has stated that the sticks at MO-1 and stones at MO-7 can also cause the injuries like abrasions noticed on the injured. Though the witness was subjected to cross-examination from the accused side, but Crl.A.No.3634/2013 27 nothing could be elicited in favour of the accused in the cross-examination of PW-8. Thus, the medical evidence of PW-8 would further corroborate the evidence of PW-1 and PW-2 that the weapons identified by them at MO-1, MO-2 and MO-7 have caused the injuries sustained by them and that the accused have made use of those weapons and inflicted injuries upon them in the incident.
27. The evidence of PW-3 though is not as much in its detail as that of PW-1 and PW-2, still it corroborates the evidence of PW-1 and PW-2. There is nothing to disbelieve the evidence of PW-3 that he too was present at the time of incident and has seen the incident being an eyewitness to the incident. As observed above, though the witness has stated that he too was assaulted in the incident, but there is no corroborative evidence, more particularly, the medical evidence to show that even PW-3 was also inflicted with some injuries by the act of the accused.
28. PW-9, PW-10 and PW-11 have stated that they too were eyewitnesses to the incident. Admittedly, they Crl.A.No.3634/2013 28 were the employees under PW-1 and they were working in his stone quarry. Among PW-9, PW-10 and PW-11, about they coming to know of the incident and coming to the spot, there is some variation. PW-9 has stated that it is after hearing from PW-3, he went to the spot of the incident. He has also stated that by the time he went to the spot, the incident was already over. Even according to PW-3, it is after the accused assaulted PW-1 and PW-2 and after he was beaten by a lady accused on his leg, he ran away from the spot. Therefore, by the time PW-3 left the spot, PW-1 and Pw-2 were already assaulted by the accused, more particularly, by accused No.1 with an axe. Therefore, if at all PW-9 has come to the spot after hearing from PW-3, he cannot see the accused inflicting the injuries upon PW-1 and PW-2. As such, PW-9 cannot be accepted as an eyewitness to the incident. Further, as observed above, PW-9 himself has stated that by the time he went to the spot, the incident was already over. Crl.A.No.3634/2013 29
29. PW-10 has stated that while he was working in the quarry, seeing the people running towards the spot of the incident, he too went there. Though he has stated that accused No.1 has assaulted with stone and club and PW-1 had sustained injury on his head and the tooth of PW-2 was broken, but the witness nowhere in his examination- in-chief has stated that he has seen the accused inflicting injuries upon PW-1 and PW-2. A reading of his evidence in examination-in-chief would go to show that he too has stated that he has only seen the incident after its alleged occurrence, but not while it was happening. Further, even this witness also in his cross-examination has stated that by the time he went to the spot, the incident was already over. Thus, PW-10 is also not an eyewitness to the incident, though he was projected by the prosecution as an eyewitness.
30. The remaining material witness i.e., PW-11 also has narrated the incident on the lines as that of PW-10 only. He too has nowhere stated that by the time he went Crl.A.No.3634/2013 30 to the spot, the incident was still going on. He has not specifically stated that he has seen the accused No.1 inflicting the injury upon PW-1 with an axe. However, his statement is that PW-1 was assaulted with an axe and clubs and PW-2 was also assaulted and has lost a tooth in the incident. He is not an eyewitness, but a person, who came to know about the incident, may be immediately after the occurrence of the incident. Even PW-11 also in his cross-examination has specifically stated that he has not actually seen as to which of the accused assaulted whom. However, through the persons, who were present in the place of incident, he came to know that accused assaulted PW-1 and PW-2. Thus, the evidence of PW-9, PW-10 and PW-11 by itself go to show that they were not the eyewitnesses to the incident, but had been to the place of incident immediately after the incident before the injured could be shifted from the place to the hospital by the police. Thus, as argued by the learned counsel for the respondents, the evidence of PW-9, PW-10 and PW-11 does not inspire confidence to believe them as Crl.A.No.3634/2013 31 eyewitnesses to the incident. However, their evidence that they had been to the place of incident immediately after the incident and collected the details about the incident and saw the injured PW-1 and PW-2 in the spot cannot be disbelieved.
31. PW-4 - Sharanappa (CW-2) has stated that the scene of offence panchanama as per Ex.P-4 was drawn in his presence, whereunder MO-1 to MO-3 were seized. Though this witness was also shown as a panch witness for seizure of cloths panchanma at Ex.P-5, but he has not supported the case of the prosecution with respect to the seizure of cloths panchanama. The evidence of PW-4 with respect to drawing of scene of offence panchanama and the said panchanama at Ex.P4 corroborates the evidence of PW-1 and PW-2 about the place of incident, which is the land bearing Sy.No.82/E in Balwadagi village.
32. PW-5 - Maruti has stated that it was in his presence, accused No.1 produced the axe at MO-2 and the police seized the said axe by drawing a seizure Crl.A.No.3634/2013 32 panchanama as per Ex.P-6. The said evidence of PW-5 that the seizure of weapon at MO-2 was drawn in his presence corroborates the evidence of Investigating Officer i.e., PW-12. Further, the injured themselves i.e., PW-1 and PW-2 also have identified the said axe at MO-2 stating that it was with the very same axe accused No.1 assaulted them inflicting injury, more particularly, upon PW-1. As noticed above, the treating doctor i.e., PW-8 has also opined that the injury found on PW-1, more particularly, the lacerated wound which has ultimately resulted in the fracture of 1st phalynx of index finger can be caused by using the said weapon shows that it was MO-2 alone that was used by accused No.1 alone in inflicting the injury upon PW-1. The said opinion of PW-8 that the contusion over the right hand of the PW-1 was reported to be a fracture of 1st phalynx is further corroborated by the evidence of Dr.Jagadish, who was examined as PW-6 (CW-13). Thus, the medical evidence of both PW-6 and PW-8 corroborates the evidence of PW-1 and PW-2 and identification of weapon at MO-2 by PW-1 and PW-2 has Crl.A.No.3634/2013 33 further gained strength by the evidence of PW-5 that the said weapon was seized in his presence, which was produced by accused No.1 in his presence. Thus, the evidence of the injured witnesses is corroborated by the medical evidence as well the panch witness's evidence.
33. The evidence of PW-7 - Chandrakant (CW-12), the Head Constable that he shifted the injured PW-1 and PW-2 to the hospital is further corroborated by the evidence of PW-8, the doctor, who has stated that it was the Wadi police, who had brought PW-1 and PW-2 to his hospital with the history of assault.
34. Thus, when the evidence of injured witness about the incident and the overt act of each of the individuals is corroborated by the supporting important witnesses like the doctor i.e., PW-6 and PW-8, the panch witness i.e., PW-4 and PW-5, the Trial Court ought to have analysed the same. However, the Trial Court did not analyse the evidence of PW-1 and PW-2 and the evidence of PW-8 in their proper perspective. No doubt, with respect to the possession of the landed Crl.A.No.3634/2013 34 property bearing Sy.No.82/E, there is some dispute between the accused and the complainant as has come up in the evidence of none else than the complainant himself. Still the very complainant i.e., PW-1 in his cross- examination has stated that the land where the incident was taken place was standing in the name of accused No.1. Even according to him, there is a civil dispute pending between them with respect to very same property. The prosecution has also brought out that a statusquo order was passed by the Civil Court with respect to the said land. When the evidence of PW-1 is that, the place of occurrence which was the land bearing Sy.No.82/E was standing in the name of accused No.1 and there was a statusquo order by a competent Civil Court, the entry of accused in that particular property, which even according to the injured was standing in the name of accused and there was a Court order also to maintain statusquo, the same cannot be called as an act of trespass committed by the accused. Thus, though the prosecution could able to show that the accused in prosecution of their Crl.A.No.3634/2013 35 common object of assaulting PW-1 and PW-2, who were said to be cultivating the disputed land entered the disputed land with weapons like MO-1, MO-2 and MO-7 and inflicted injuries upon PW-1 and PW-2, but it fail to prove that it was a criminal trespass by the accused.
35. No doubt, the medical opinion go to show that all the injuries sustained by PW-2 were simple in nature and one among the injuries sustained by PW-1 was grievous and remaining three were simple in nature and those injuries were voluntarily caused by the accused in furtherance of their common object, in which process accused No.1 had used a dangerous weapon i.e., axe at MO-2, but the evidence of prosecution witnesses except an oral statement of PW-1 that the accused assaulted them with an intention to kill him, by that itself it cannot be inferred that accused had any intention to cause the death of either PW-1, PW-2 or PW-3. Had the accused really intended to cause the death of any of these three witnesses, it was not impossible for them, since at the time those accused entered the disputed property they were armed with weapons like axe, Crl.A.No.3634/2013 36 clubs and stone, which are MO-1, MO-2 and MO-7 and also accused were larger in number compared to three persons i.e., PW-1, PW-2 and PW-3. Therefore, had really the accused intended to cause the death of anyone among them, they could have easily fulfilled their object and purpose. On the other hand, the evidence of PW-3 itself go to show that the accused were simply assaulting PW-1 and PW-2 with their hands, legs and club. However, it is accused No.1, who assaulted PW-1 with an axe. More importantly, PW-9, PW-10 and PW-11 though stated that accused assaulted PW-1 and PW-2 and threatened these people of dire consequences in case if they go to the rescue of PW-1 and PW-2, as such, these people have to stay away, but none of those three witnesses have stated that any of the accused had made any attempt to kill either PW-1 or PW-2. When other persons including the PW-9, PW-10 and PW-11 were prevented from approaching PW-1 and PW-2, then nothing had prevented accused to accomplish their purpose and complete their object of killing PW-1 or PW-2 had really they intended to kill either of them. Therefore, merely Crl.A.No.3634/2013 37 because one among the accused was said to have possessing a dangerous weapon like axe (MO-2) with him, by that itself it cannot be concluded that accused had any common object of killing PW-1 or PW-2. Therefore, the prosecution could not even able to establish the offence punishable under Section 307 of IPC.
36. PW-1 and PW-2 have stated that accused abused them in filthy language and threatened them of dire consequences. However, neither of them have stated as to with what abusive language the accused abused them and whether it was a provocation given to them so as to resulting in committing breach of public peace. Further, it is only PW-1, who has stated that accused threatened them to their life. Had really the accused threatened PW-1 to his life, then PW-2 and PW-3, who claims to be along with PW-1 at the time of incident, should have necessarily mentioned about the same. However, neither PW-2 nor PW-3 have mentioned about accused putting life threat to PW-1. Therefore, there is no Crl.A.No.3634/2013 38 material to hold that the accused have committed the offence punishable under Sections 504 and 506 of IPC. However, the Trial Court, as analysed above, though there were sufficient materials and trustworthy evidence by PW- 1, PW-2 and PW-3, among whom PW-1 and PW-2 were injured witnesses to believe that accused had a common object of causing obstruction to PW-1 and PW.2 in they cultivating the disputed property and the accused had come prepared with weapons at MO-1 and MO-2 and assaulted PW-1 and PW-2 inflicting simple and grievous injuries, there was sufficient evidence to hold that accused forming an unlawful assembly with the object of causing grievous hurt to PW-1 had committed the alleged act of assaulting PW-1 and PW-2 making use of dangerous weapon at MO-2 and inflicting simple and grievous injuries to PW-1 and PW-2 voluntarily. However, the Trial Court, doubting the evidence of PW-9, PW-10 and PW-11, doubted the entire case of the prosecution, which conclusion of the Trial Court, thus was proved to be an erroneous conclusion. As such, we hold that the Crl.A.No.3634/2013 39 prosecution could able to establish beyond reasonable doubt the guilt of the accused for the offences punishable under Sections 143, 147, 148, 323, 324, 325 R/w Section 149 of IPC. However, it failed to establish the guilt against the accused for the offences punishable under Sections 447, 307, 504 and 506 of IPC. It is for the said purpose, the judgment under appeal warrants interference at the hands of this Court. Accordingly, we proceed to pass the following:
ORDER [1] The appeal is allowed in part.
[2] The judgment of acquittal passed by the Principal Sessions Judge at Gulbarga, dated 26.09.2012 in Sessions Case No.49/2011 is set aside in part.
[3] The judgment of acquittal of accused No.2 - Raju S/o Rayappa and accused No.5 - Parvati D/o Rayappa for the offences punishable under Sections 143, 147, 148, 323, 324 and 325 R/w Section 149 of IPC is set aside and those two accused are convicted for the offences punishable under Sections 143, 147, Crl.A.No.3634/2013 40 148, 323, 324 and 325 R/w Section 149 of IPC. However, the judgment of acquittal of the accused for the offences punishable under Sections 447, 307, 504 and 506 of IPC remains unaltered.
37. Heard the learned counsels from both side regarding the sentence.
38. It is the sentencing policy that the order of sentence must be proportionate to the gravity of the proven guilt. It must be neither exorbitant nor for name sake.
39. In the instant case, as established by the prosecution, the actual person, who inflicted injuries on PW-1 making use of the axe is accused No.1, against whom the appeal has stood abated. However, the present convicts i.e., accused No.2 and accused No.5 were the members of unlawful assembly, as such, they shared the common object. The accused No.2 is accused of inflicting the injuries upon PW-2 by assaulting him with a club. According to PW-2, the said accused No.2 is also shown to Crl.A.No.3634/2013 41 have assaulted PW-1 with the same club. It is considering this aspect, we proceed to pass the following:
ORDER ON SENTENCE [1] For the offences punishable under Sections 143, 147 and 148 of the Indian Penal Code, 1860, the respondents/accused No.2 - Sri Raju S/o Rayappa Kwalibanoor, Age: 28 years, Occ: Agriculture, R/o Balawadagi, Now residing at Near Kamalibab Darga, Wadi and accused No.5-Parvati D/o Rayappa Kwalibanoor, Age: 35 years, Occ: Household, R/o Balawadagi, Now residing at Near Kamalibab Darga, Wadi are sentenced each to pay a fine of `2,000/- (Rupees Two Thousand Only). In default of payment of fine, they shall undergo simple imprisonment for a period of fifteen days;
[2] For the offence punishable under Section 323 R/w Section 149 of the Indian Penal Code, 1860, accused No.2 and accused No.5 are sentenced each to pay a fine of `3,000/- (Rupees Three Thousand only), in default of payment of fine, they shall undergo simple imprisonment for a period of thirty days;Crl.A.No.3634/2013 42
[3] For the offence punishable under Section 324 R/w Section 149 of the Indian Penal Code, 1860, accused No.2 and accused No.5 are sentenced each to undergo simple imprisonment for a period of one year and to pay a fine of `1,000/- (Rupees One Thousand only). In default of payment of fine, they shall undergo simple imprisonment for a period of fifteen days;
[4] For the offence punishable under Section 325 R/w Section 149 of the Indian Penal Code, 1860, accused No.2 and accused No.5 are sentenced each to undergo simple imprisonment for a period of two years and to pay a fine of `2,000/- (Rupees Two Thousand only). In default of payment of fine, they shall undergo simple imprisonment for a period of thirty days;
All these sentences shall run concurrently.
[5] The period of judicial custody undergone, if any, by the accused No.2 and accused No.5 be given set of in the total sentence.
Crl.A.No.3634/201343
[6] Accused No.2 and accused No.5 to
voluntarily surrender before the Trial
Court to serve the sentence immediately.
[7] The Registry to furnish a free copy of this judgment to the accused No.2 and accused No.5 immediately.
Registry to transmit a copy of this judgment along with Trial Court's records to the Trial Court, immediately, for doing the needful in the matter in securing the accused for serving the sentence and in accordance with law.
Sd/-
JUDGE Sd/-
JUDGE LG