Karnataka High Court
Basappa S/O Bhimaraya Anel vs The State Through Gogi Police Station on 1 June, 2019
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 01ST DAY OF JUNE-2019
PRESENT
THE HON'BLE MR.JUSTICE K.N.PHANEENDRA
AND
THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR
CRIMINAL APPEAL NO.3608/2011
BETWEEN:
Basappa S/o Bhimaraya Anel
Age: 21 years, Occ: Agriculture,
R/o Hosakera, Tq. Shahapur
Dist. Yadgir.
... Appellant
(By Sri Anivash A. Uploankar, Advocate)
AND:
The State through
Gogi Police Station.
... Respondent
(By Sri Mallikarjun Sahukar, HCGP)
This Criminal Appeal is filed under Section 374(2)
of Cr.PC, praying to set aside the judgment passed by
the Sessions Judge at Yadgir for convicting the
appellant by it's Judgement at 28th June-2011, in the
interest of justice.
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This appeal coming on for final hearing this day,
K.N.Phaneendra J., delivered the following:
JUDGMENT
The appellant is arrayed as accused No.1 in Special Case No.88/2010 before the District & Sessions Judge, Yadgir along with accused No.2, a juvenile accused by name Sangappa S/o Bhimaraya Anel who is none other than full blood brother of the appellant. The appellant accused was tried for various offences i.e. under Sections 435, 504, 304 Part-II R/w 34 of Indian Penal Code and also under Sections 3(1)(x) and 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short the 'Act'). Accused No.1 (appellant) was convicted for the offence under section 435 read with section 34 of Indian Penal Code and sentenced to undergo simple imprisonment for a period of three years and to pay fine of Rs.1,000/-. In default to pay fine to undergo simple imprisonment for six months. Further appellant was also convicted for the 3 offence under section 504 of Indian Penal Code and sentenced to undergo simple imprisonment for a period of one year. The appellant was also convicted for the offence under section 304 Part II read with section 34 of Indian Penal Code and sentenced him to undergo simple imprisonment for a period of 7 years and to pay fine of Rs.1,000/- with default sentence of six months. The Trial Court also convicted him for the offence punishable under sections 3(1) (x) of the Act, to undergo simple imprisonment for a period of two years and to pay fine of Rs.1,000/- with default sentence of three months, as the offence under section 304 Part II is punishable with imprisonment for 10 years, therefore, invoking provisions under section 3 (2) (v), appellant was also sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/- with default sentence of one year simple imprisonment.
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2. Being aggrieved by the said judgment, appellant accused No.1 who was tried by the Sessions Judge, preferred this appeal. The case has been split up against accused No.2 because he was juvenile accused and his case is now being tried by the concerned Juvenile Justice Board.
3. Therefore, this Court has to confine itself with regard to the judgment and sentence so far it relates to the appellant so as to find out whether the trial Court has properly appreciated, oral and documentary evidence on record, in order to draw an inference that accused No.1 has committed the said offence for which he was convicted and sentenced.
4. The brief factual matrix as could be seen from the record is that: A person by name Bhimraya S/o Hanumanthraya Attadamani of village Hosakera, Shahapur lodged a report as per Ex.P1, alleging that, they were having 5 acres of land at Gogi-Hosakera road 5 and they were doing agriculture. Complainant (PW.1) stated that, he has been residing along with his mother Laxmibai in the said land itself. Accused persons land is located adjacent to the land of the complainant's land. The complainant infact has cut down some mango trees and stored mango logs in his land by the side of the corner of his land nearby a Bund. It is further alleged that, on 14.04.2010 at about 11.00 a.m. accused persons have lit fire to the said mango logs and infact PW.1 extinguished the fire and on the same day at about 5.00 p.m. when the complainant questioned accused persons why they have committed such act, then accused persons have retorted that they have not committed any such offence and they also abused complainant with filthy language referring to his caste as 'holeya sulemagane' (holeya bastard). In spite of the complainant asking why the accused persons abusing him like that, accused by name Basappa i.e. the appellant has assaulted the complainant with a club. 6 At that time, mother of the complainant resolved the dispute and all of them went back to their houses.
5. It is further alleged that on the same day at about 11.00 p.m. in the night, accused persons again went to the house of the complainant, situated in his land and started abusing the complainant. Particularly alleged that, juvenile accused Sangappa assaulted PW.1, when the mother of PW.1 came to rescue the complainant, accused No.2, juvenile/accused assaulted on the temporal region on the head of the said lady, which caused a severe injury and on the spot itself she succumbed to the said injury. Being afraid of the said situation, the complainant went back to his village informed the said act of the accused persons to the villagers and his family members and came to the spot again in the next day morning at 7.00 a.m. Afterwards, on 15.04.2010 at about 10.00 a.m., he went to the police station and lodged a report which came to be 7 registered in crime No.29/2010 initially for the offences under Sections 435, 324, 302, 504 read with section 34 of Indian Penal Code and also under section 3 (1) (x) & 3(2) (v) of the Act.
6. On the basis of the above said report, the police have taken up the investigation and after investigation found that the accused persons have committed such offence alleged against them as such laid a charge sheet against them for the above said offences.
7. The learned Sessions Judge after securing presence of the accused framed charges against them for the above said offences and tried them as the accused persons have pleaded not guilty of the offences. The prosecution in order to bring home the guilt of the accused, examined as many as 8 witnesses as per PWs.1 to 8 and got marked 15 documents as per Ex.P1 to P15 and 7 material objects as MOs.1 to 7. 8
8. After examination of the prosecution witnesses and after providing them opportunity to lead defence evidence, as they did not choose to do so, learned Sessions Judge after hearing both sides rendered the impugned judgment of conviction and sentence as detailed supra.
9. Learned counsel for the appellant strenuously contends before this Court though PWs.1 and 3 who claim to be the eyewitnesses to the incident, but they could not have seen the incident, they were actually planted witnesses subsequently by the complainant. He also contends that, there is no mention of presence of PW.3 at the spot, in the first information report about her presence. Further it is contended that, there is no overt act as such alleged by the appellant but the whole of the allegations are made against accused No.2. The said allegations against accused No.2 have to be tried by the Juvenile Justice 9 Board. He further contends before this Court that there are lot of contradictions and omissions in the evidence of PW.1 and 3 which makes their evidence untrustworthy for acceptance. He further contends before this Court that so far as previous incident on the same day at 11.00 a.m. or at 5.00 p.m. is concerned, there are no eyewitnesses to the said incidents except the sole testimony of PW.1. Therefore, PW.1 being interested and there is no corroborative material from the medical evidence which has to be carefully scrutinized by the Court. If once, the evidence of PW.1 is with proper perspective considered, the contradiction and omissions elicited in the evidence of PW.1 booms large and the Court should be very careful in accepting the evidence of such sole witness. There is no recovery of any incriminating material as such from the appellant. Therefore, for the above said reasons, learned counsel contends that, the judgment of 10 conviction and sentence passed by the trial Court is erroneous and the same is liable to be set aside.
10. Per contra, learned High Court Government Pleader submits that, the trial Court has though come to the conclusion that, the offence under section 304 Part II of Indian Penal Code is made out and convicted the appellant on the ground of common intention. The appellant who was very much present along with accused No.2 did not even prevent accused No.2 from committing any offence, on the other hand he also joined hands with accused No.2 by suppressing the real fact and not disclosed to the police at the relevant point of time. Therefore, the trial Court has taken into consideration the conduct of the appellant stating that he also joined hands with accused No.2 in committing offence. Therefore, there is no reason to interfere with the judgment of conviction and sentence passed by the trial Court.
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11. In the wake of the above submissions made by the learned counsel, this Court has to examine the evidence adduced by the prosecution to ascertain whether the prosecution has proved the case against the appellant beyond reasonable doubt. Before adverting to and appreciating the material evidence available on record, we feel it just and necessary to have a brief cursory look at the evidence of the prosecution witnesses. The prosecution examined as many as 8 witnesses. PWs.1 and 3 are the prime witnesses to the prosecution and they were examined as eye witnesses. we feel it just and necessary to discuss their evidence little later.
12. PW.2 is only a formal witness who is a panch witness to the spot mahazar as per Ex.P.3 with regard to the place where mango logs were burnt.
13. PW.4 is a lady by name Siddamma W/o Parashuram who is none other than sister of PW.1 and 12 daughter of deceased Laxmibai. She has categorically supported the case of the prosecution by showing the conduct of PW.1 visiting the land on that day and that deceased was residing in the house situated in the land of PW.1 and on the date of incident, PW.1 took food to the deceased and he came back at about 5.00 a.m. on the next date and informed about the incident to this lady. Thereafter this lady and others went to the land and saw the dead body of deceased Laxmibai.
14. PW.5 Mahesh S/o Mallikarjun is also a formal witness, who carried the first information report to the jurisdiction Magistrate. Learned counsel contended that there is delay in lodging the complaint to the Magistrate. But considering the distance of more than 80 kms. from the place of incident to the residence of JMFC or the Court, we do not find any strong reason to discard the evidence of this witness or hold that there is deliberate delay in submitting the FIR to the Court. 13
15. PW.6 Somayya Bhagawanmath is a person who received the information on 15.04.2010 with regard to the incident and he went to the spot and infact he conducted spot mahazar as per Ex.P3 and conducted inquest panchanama. Further he visited the spot and collected some material like blood stained mud, un- blood stained mud and also seized one wooden club and agricultural instrument and arrested the accused in this regard. He also collected blood stained clothes of the deceased and collected materials like caste certificate of PW.1 and also of accused persons and submitted the charge sheet against the accused persons.
16. PW.7 is the Doctor who conducted Autopsy on the dead body of the deceased Laxmibai and he stated that death was due to head injury as there was intracranial hemorrhage in the head as per certificate at Ex.P.10. An alternative stand has been taken in the cross-examination of PWs.1 and 6 which is also 14 suggested to the doctor suggesting that, if a person aged about 65 to 70 years falls on a single sharp projected stone, injury sustained by the deceased could be caused. PW.7 has accepted the suggestion. But merely because a suggestion has been made to the doctor that itself cannot be any proof to the Court otherwise than that suggestion, the circumstance should be shown by the accused to show that falling of the said lady on a stone and actually she sustained injuries by falling on a sharp projected stone. But there is no such material available in the evidence of other witnesses, particularly in the evidence of PWs.1 and 3 except making some suggestion. There is no circumstance shown to have been existed that the existence of any such stone near by the house in the land of PW.1 and any other circumstances, which probabalises the said defence taken by the accused. Therefore, keeping aside the said defence taken, the Court has to examine whether the prosecution itself has established its case. 15
17. PW.8 Prakash S/o Limbappa Mali is only a formal witness. He was working as PSI and he received the complaint (report from PW.1) and registered a case in Crime No.29/2010 for the offences punishable under Sections 324, 504, 435, 302 read with Section 34 of Indian Penal Code and Section 3(1)(x), 3(1)(xi) and 3(2)(v) of the Act and dispatched the FIR to the Court.
18. On careful perusal of the above said evidences of the other witnesses, in our opinion, are all formal in nature except PW.1, PW.3 and PW.4. PW.1 complainant has stated and reiterated as to what happened on that particular day. He has deposed before the Court that on that particular day of the incident, he had stored some mango logs in his land, accused persons at about 3.00 p.m. lit fire to the said logs after coming to know about the same, this witness went to the said place at about 5.00 p.m. and extinguished the fire. Therefore, here itself without 16 going to refer the cross examining of this witness, it is clear that, he never said that he had actually seen accused persons setting fire to the wooden logs but he came to know about the same and went to the spot at about 5.00 p.m. to extinguish fire. He further stated that at about 5.00 p.m., he questioned the accused persons as to why they have lit fire to the wooden logs, then accused persons have abused him in filthy language and assaulted him with a club. But he never stated among two accused persons who actually assaulted him. It is conspicuously absent in the examination in chief itself among the two accused who assaulted him and further he has not stated that any other person was present at that particular time to view or visualize the incident or hear the abusive words used by the accused persons so as to attract section 3 (1) (x) of the Act because the said provisions clearly says that hurling or using abusive words referring to the caste should be in the public view. No such evidence is 17 available that at 5.00 p.m. when the accused have abused PW.1 any other person has witnessed or viewed the said abusive words being used by the accused persons. Therefore, so far as the previous incident is concerned, except the evidence of PW.1 nothing is available. PW.1 never saw accused persons setting fire and no other persons were present to view the abusive words being used by the accused persons and there is no material to establish as to who actually assaulted PW.1 on that particular point of time. Even if as it is accepted the evidence of PW.1 there is no proof before this Court with regard to previous incident for which the charges were framed by the trial Court and accused was convicted for the offence under section 435 of Indian Penal Code without there being any basis.
19. Now coming to the second incident which happened at 11.00 p.m. in the night on the same day. This witness has stated that at 11.00 p.m. he was there 18 in the hut along with PW.3 and mother of PW.1 deceased Laxmibai. At that time both accused came to that particular spot and started abusing this man with abusive words like 'holeya sulemagane' (holeya bastard) and asked him to come out at that time appellant/accused No.1 has assaulted PW.1 with a club and another accused i.e. accused No.2, Sangappa assaulted on the right temporal region of the mother of PW.1 and she sustained injuries and died on the spot and this witness later went to the village and brought the family members and thereafter went to the police station and lodged the complaint. Here also so far as the abusive words being used by the accused persons particularly this accused, the offence under Section 3 (1)(x) of the Act, is not attracted he never stated the presence of any other person who has actually viewed the said abusive words being used by the accused persons. Nevertheless, he has not stated that accused No.1 has actually assaulted him in the night at 11.00 19 p.m. on the other hand, he implicated accused No.2 as the person who assaulted him and also the deceased. Therefore, the evidence of this witness is fully contradicted even with regard to assault by the appellant on this witness even in the examination in chief.
20. Learned counsel taking us through the cross-examination of this witness has pointed out that he has never stated in the complaint or in the subsequent statement, presence of PW.3 but he improved his version before the Court. It is clear omission on the part of this witness in not stating the same before the police. This witness is not corroborated by any material with regard to assault on him. In fact, he was sent to the hospital and his injury certificate is marked at Ex.P6 which discloses that he has not sustained any injuries. Learned counsel also brought to the notice of this Court with regard to existence of any 20 light at the place of incident. It is true that police have not collected any material to show that there existed any light in the said house of PW.1. Nevertheless, at about 11.00 p.m., it is not suggested that these witnesses could not see the incident, because it was so dark that anybody could hardly see each other, so as to totally absolve evidence of PW.1. Even no material is collected with regard to light, it will not, in any manner, impair the case of the prosecution and discard the evidence of PW.1. On that ground, of course, PW.3 has stated before the Court reiterating the incident, in our opinion, the same principle is also applicable so far as the evidence of PW.3 is concerned. In our opinion, presence of PW.3 is doubtful, because PW.1 has never stated about her presence at the earliest point of time. In the complaint itself it is not stated that she is a stranger but she is very close relative of PW.1. There is no chances of PW.1 missing the name of PW.3 at that particular point of time. On the other hand at the 21 earliest point of time when the inquest proceedings were held the statement of the said lady has not been recorded there is delay in recording the statement of the said lady.
21. Be that as it may, even ignoring the evidence of PW.3, we have the evidence of PW.4. PW.4 Siddamma has categorically stated that, on that particular day of the incident in the evening at about 7.00 p.m. PW.1 came to the house and told about the wrongful act committed by the accused in setting fire to the Mango wood logs and thereafter he went to the land again by taking food to the deceased and again he came back to the house in the early morning on the next day at about 5.00 a.m. and told about the incident being happened and thereafter this witness also went to the spot and saw the dead body of the deceased. She also reiterated in the cross-examination that, she went to that particular spot but she could not say as how many 22 persons gathered on that particular point of time. She also stated that her statement was recorded by the police.
22. Therefore, looking at the evidence of PW.1 that PW.1 had come back to the house and again taken food and went to the house in the land. This evidence is fully corroborated by the evidence of PW.4 and further added to that there is no reason as to why PW.1 has to say any false evidence against the accused persons if really such incident had not happened. But the fact remains that this appellant has not done any overt act at the time of incident. It is only the allegation against accused No.2 i.e. Sangappa who assaulted this witness PW.1 and as well as the deceased on her head.
23. The Trial Court in fact while discussing the evidence came to the conclusion and found that the entire overt act is on the part of accused No.2 i.e., Sangappa but accused No.1 was also present along with 23 accused No.2 the Court has drawn an inference taking the help of Section 34 of Indian Penal Code and inferred the common intention on the part of this appellant also. Section 34 of Indian Penal Code speaks about the common intention. In order to attracts Section 34 of Indian Penal Code the prosecution has to establish that the criminal act was down by the several persons in furtherance of common intention of all, then only each of such person is liable for that act in the same manner as if it was done by him alone. Here there is no material to show that what was the common intention of the accused persons when they came to the particular spot. So far as the intention aspect is concerned the Trial Court has already made an observation that even accused No.2 had no intention to cause the death of the deceased and the offence was reduced to Section 304 Part II of Indian Penal Code which specifically says that there should be absence of intention. Section 304 Part II of Indian Penal Code only refers to the knowledge of the 24 accused person in committing the offence. The State has not preferred any appeal against the judgment of the Trial Court.
24. Therefore, we are obliged to look into Section 304 Part II of Indian Penal Code which is the highest offence under which the accused persons were convicted and sentenced. Section 304 Part II says that, if the act done with the knowledge that it is likely to cause the death but without any intention to cause death, then such offence falls under Section 304 Part II of Indian Penal Code. Therefore, when once it is said that intention on the part of accused No.2 himself is not there, there cannot be any common intention could have been invoked by the Trial Court, in which also in our opinion cannot be omitted to the appellant because of the simple reason that the assault by accused No.2, he only knew what was pressure he has to use while giving the said blow and which was the part of the body of the deceased was selected and whether such blow 25 given by him was sufficient to cause the death of the injured deceased is only within the knowledge of the said person who committed that act. Even Section 304 Part II does not speak about any common knowledge but it only deals with the common intention. Therefore, here the common intention when cannot be invoked against this appellant he cannot be convicted for the offence under Section 304 Part II of Indian Penal Code or under Section 3(2)(v) of the Scheduled Castes and the Schedules Tribes (Prevention of Atrocities) Act, 1989. Therefore, to that extent the judgment and sentence passed by the Trial Court so far as this appellant is concerned deserves to be set aside.
25. Apart from the above, we have already discussed that no offence under Section 435 of Indian Penal code and as well as under Section 3(1)(x) Scheduled Castes and the Schedules Tribes (Prevention of Atrocities) Act, 1989 are made out. Therefore, what remains for consideration is that, what offence the 26 appellant has actively committed mere presence of an accused who committed the offence whether it casts any responsibility on the appellant has to be looked into by the Court. It is worth to refer the provision under Section 202 of Indian Penal Code, which says that if a person is having any responsibility to inform the concerned police with regard to commission of any offence by any other person which he has seen and he has not done so he is committing an offence under Section 202 of Indian Penal Code. The said provision says that -
"Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both."
Therefore, in our opinion the appellant has committed an offence under Section 202 of Indian Penal Code for 27 which he is liable to be punished. With the said observations, we proceed to pass the following ORDER The judgment of conviction and order of sentence passed by the Trial Court against this appellant for the offences under Sections 435, 504, 304 Part II of Indian Penal Code and 3(1)(x) and 3(2)(v) of Scheduled Castes and the Schedules Tribes (Prevention of Atrocities) Act, 1989 are hereby set-aside.
However, the offence under Section 202 of Indian Penal Code is being minor offence compared to the other offences alleged against the accused there is no need for this Court to frame charges under the said provisions directly the Court can convict the accused person for the said offence.
Hence, we convict the accused/appellant for the offence under Section 202 of Indian Penal Code and sentenced him to undergo rigorous imprisonment for a 28 period of six months and to pay a fine of Rs.5,000/- in default to undergo imprisonment for another three months. If the appellant has already undergone the said punishment during the course of inquiry or trial he shall be entitled for and there is no necessity to pass any further orders directing him to undergo further imprisonment. However he has to pay the fine amount. If he has paid any fine already for the offences as imposed by the trial Court, same shall be treated as fine paid as imposed by this Court. If any fine remains unpaid only such amount has to be paid.
With these observations, the appeal is partly allowed and disposed off.
Sd/-
JUDGE Sd/-
JUDGE SMP/VNR/sn