Karnataka High Court
Manjunatha Reddy vs State Of Battalahalli Police on 2 December, 2011
Author: Subhash B.Adi
Bench: Subhash B.Adi
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 254 DAY OF DECEMBER, 201 |
BEFORE
Onl
THE HON BLE MR.JUSTICE SUBHASH B. ADT.
CRIMINAL APPEAL NO.134/2006 SIC}
BETWEEN:
L. MANJUNATHA REDDY
3/O. BALAREDDY, ;
AGED ABOUT 28 YEARS ©
2. VISHWANATH REDDY
S/O. BALAREDDY 0
AGED ABOUT 22 YEARS ~
3. SRINTV ASA: RED DY:
S/O. BALAREDDY,"
AG ED 4 BOUT" 7 25 Y EARS |
ALL ARE. RESIDENT rs OF. .
GOWNIPALLI --
CHIN' PH AMAN} TALU K
KOLAR, DISTRICT ae . APPELLANTS
"By SRL SHAM KARAPPA. SAND ASSOCIATES, ADVS.)
AND: .
STATE BY BATTALAHALLI
"POLICE STATION,
REP, BY THE STATE PUBLIC
PROSECUTOR,
"HIGH COURT BUILDING,
PANGALORE .RESPONDENT
- {BY SRI. BHAVAN] SINGH, HCGP)
ISO SISSIES SET SUSI TE rac
Se
ocorvielion, aceused mos.]. Sand 4 are before this Court.
THIS CRIMINAL APPEAL FILED UNDER SECTION
374(2) R/W. 386 (B)0) Cr.P.Cc. BY THE ADVOCATE FOR
THE APPELLANT AGAINST THE JUDGMENT
DATED.31.12.2005 PASSED BY THE P.O., ° FiT:Cu-ll,
KOLAR IN S.C. NO.365/2001, CONVICTING. THE
APPELLANT / ACCUSED NO.!, 3 AND 4° FOR THE.
OFFENCES P/UNDER SECTION.447 AND..307 OF IPC. ~
READ WITH SECTION 34 OF IPC AND. SENTENCING A/A, --
NO.1 TO UNDERGO 2 MONTHS RI. AND TO. PAY-A FINE
OF RS.3800/- (THREE HUNDRED) FOR THE GFFENCE
P/UNDER SECTION. 447 OF TPC R/W. SEC.384.AND LD.. -
AND FURTHER UNDERGO SENTENCE FOR QNE MONTH...
ETC. 7 i i
THIS CRIMINAL APPEAL COMING 'ON FOR HEARING ON
THIS DAY, THE COURT DELIVERED. THE FOLLOWING:
(JUDGMENT ~~
Appeal bythe accused nos.i, 3 and 4 against the
judgment ef conviction "in S.C. No.365/2001, dated
31.12.2005-0n the file. of Fast Track Court -- Il. Kolar.
2. &ccused nos-1 to 6 were charge-sheeted and tried
fer offences --:punishable under Sections - 143, 447, 307
~g
read with 149 of LP.C. The Trial Court acquitted accused
2 ries.2, B-and 6 and convicted accused nos. 1, 3 and 4 for
"offences punishable under Sections - 447, 307 read with
Section - S4 of LP.C. It is against the judgment of
Ea
C AAP -
A cls al
BESS SSS SE RO UME USCC RSLS
3. The case of the prosecution as unfolded before the
Trial] Court was that the accused nos.1, 3 and 4 are sons of
accused no.2. Accused nos.5 and 6 are two wives, of
accused no.2. PW-1, PW-2 and PW-4 are cousin brothers:.
PW-3 is their relative. There was a dispute between the
accused and PW-1 with regard to sharing of land and»
boundary.
4, On 05.09.2000, while pw- ' was forming a canal
for water flow to his land, at that time accused nos.1 to 6
all at once camie, to. the "spot and picked up a quarrel
alleging that the lard where the canal was formed by the
PW-1I. belonged t6 "the. accused. When PW-1 tried to
convince the 'accused that he is not encroaching on the
_ land 'of the aoe used. at that time on account of previous
enimity, a coused . no.4 tried to assault PW-1 with a chopper
on his eau, However. PW-1 escaped the said blow, PW-1
"raised his right hand, as a result, his right hand was
chopped of severing from the elbow and sustained grievous
.yuries. Accused nos.2 and 1 also assaulted with club.
Accused mos 3, 4, 5 and 6 assaulted with hand. Al that
a
_. .
time, PW-2 and PW-3 came to the spot and pacified the
quarrel and took PW-1 te SNR Hospital, Kolar.
5 COW-12, ASI attached to the Kolar Tewn Police got
the MLC at Exhibit - P4 at about 6.47 P m, He went to SRN
Hospital and recorded the stateme: nt 'of the injured Pw
and accordingly he registered the. case "in| crime
noe.171/2000, for offence Ss punishable ander Sections 1438,
147, 148, 447, 323, 324 anid 207 Trea. d- with. i149 of the IPC.
An information,was also sent to the Batléhalli police station
as the incident "had -ecétirred "within the jurisdiction of
Batiah alli | polic ; station | Ba ila inalli | police station registered
the case in Crime. No:/ 2000 and at 2.30 p.m. on
06.09.2000 arid ihe FIR was sent as per Exhibit PS, which
7 Was received by the Jurisdictional Magistrate, Chintamani
at-8.00 p.m, o7°08,09,2000 Further, PW-8 investigated the
matter and Sled the charge-sheet.
_ 6. On committal, all the accused were brought before
ihe learned Sessions Judge. In their presence. the learned
Sessions Judge framed the following charges:
SE eR TE
Qe
"That on 05.10.2000 at about 2.00 p.m., near
the land of CW-1, G.A. Shivashankara Reddy,
Gownicheruvapalli, you Al to AG, were members:
of unlawtul assembly with cormmon object. ie.
murder CW-lL and thereby committed ar © ffenc e
punishable under Section 14: SIPC. a
On said date, time and place, in prosecution of |
common objection of the "said ASSE mb ly" you.
trespassed into the land. of ¢ CW-1 and there by
cormmitted an offence punishab le under SEction
447 read wit h Section. 149 IPC.
On. the. sald date, time ane place *, In prosecution
of said common objection of assembly you, A4
cul off 'the Hight hand of CW-1 with chopper,
and also Al> of s 6 assaulted CW-1 with an
intention fom: irder "and that you caused hurt to
CW] _ by the said act and there by committed an
- o offenc e punishable under Section 307 read with
~ Seetion }. 14 19 ape."
/. Ail accused pleaded not guilty and claimed to be
. tried. The prosecution to prove the charges examined PW-1
to PW-12, marked Exhibit - Pl to PIS and produced MO]
'to MO3, namely, the chopper and two clubs.
TAs
a
. 'to commit murder of PW-1. It is against the said conviction
side, three witnesses were examined as DW-I to DW3 and
Exhibit D1 to D10 were marked.
&. The Trial Court relying on the evidence of PW- 1,
the injured, PW-2, PWS and PW4 stated. to be the eye-
witnesses, PW-10, the Doctor, who examined the injured,
held that the evidence of PW to PWe4 is' credible anid»
reliable as PW-1 being injured, he has stated the overt-act
against accused nos.1,-3 and 4 and further stated that
accused no.4 assaulted with the chopper, which resulted in
severing of the right hand from the elbow. Relying on the
averments in the 'complaint wherein PW-1 has stated that
the accused intended to kilt him and he escaped the blow
and as a re sult he sudtained grievous ijury to his right
and. the Trial Court convicted accused nos.1, 3 and 4 for
-olferices punishable under Sections -- 447, 307 read with
Section 34 of TPC, as the accused had a common intention
~~ accused nos. 1, 3 and 4 are in appeal.
ae
ee
9. Heard the learned counsel Shri. Shankarappa for
accused nos.i, 3 and 4 and the learned State .Public
Prosector, Shri. Bhavani Singh, for the Respondent ~. State.
1Q. Shri. Shankarappa, the learned counsel-referred.
to Exhibit PI, the statement of the injured and poin ted out
that PW-1 in his complaint has. alleged that accused noe
assaulted with a chopper. Accused nos.4 and | 3 with clubs
and other accused with the hard According to PW-1, the
incident had occu? nred are. 60 P. m, on 06. 09. 2000, he was
brought to SNK Hospital at 6. 00 OM. on : 06. 09.2000. Even
according to cw. 12 who recorded the statement of PW-1,
of the MLC rec -elved by. him, he recorded statement on
05, 09-2000 itse Hf "Wheveas, the FIR, Exhibit - P-13 has
"reached the learned Magistrate at 3.00 p.m. on 06.09.2000
ie. nearly alter a delay of 18 hours after registering the
. FIR. He submitted that PW-4 in his evidence has admitted
that he accompanied PW-1 to the hospital and he is stated
fo pe the eye-witness, whereas his statement was not
_ vecorded on the same day. Neither PW-12 nor PW-8 have
ROE
explained the reason for the delay of 18 hours in sending
the FIR. This delay creates serious doubt as to the
correctness of the staternent of PW-1, to support the same
he also relied on Exhibit - P2, the further staternent of PW- >
further statement recorded on 19.12.2000 alleges, 'that.
accused no.1 assaulted on his.right hand with & chopper.
Since he was frightened he could: not mention the name of
accused no.1 assaulting with the chopper.
11. Learned "counsel relying on 'this he submitted
that the genesis of the offences has riot been disclosed by
the police ARG the very genesis has been su ppressed as the
complaint and the further statement of PW-1 are mutually
contradicting to each other and it creates serious doubt as
"regard to the correctness of the statement of PW-1.
"19. oF urther, to su pport his contention the learned
oe * Sunsel submitted that it also corroborates from the
: ovide aoe of PW-1 recorded on 19.12.2000, that the
. information was received by the Batlahalli police station on
"05.09.2000 at 2.30 p.m., whereas the FIR has reached the
a NN
learned Magistrate on 06.09.2000 at 8.00 p.m. though the
distance between Chintamarni and Batlahalli is 13 kms. To
support the very same contention the learned counsel aiso
relied on evidence of PW-2 and contended thet PW-2.in His.
evidence has stated that before they went to Kolar Hospital,
they had informed the Batlahalli police station, however. no
case is registered, no statement is recorded ori the sdid day,
however, the Batlahalli police as riot-explainéd-as to what
happened to the said information...
13. Secondly. the learned counsel for the accused
submitted that the evidence of PW-2 and PW-3 is nothing
but an improvement from the statement which they made
before the police under Section - 161 of the Cr.P.C.
14. He further submitted that the presence of PW-2
and PW-3 is doubtful. To support the same he relied on the
evidence of PW-2 in the cross-examination before the
Tnvestigating Officer and submitted that when they went to
pocanb
"the spot, accused no.4 had a chopper and accused nos.
€
cand 3 with the clubs had assaulted PW-1. Accused no.i
Bena HUI Cc cE Uta Grn CS
ces
RB
assaulted with the club above the left eye and the accused
no.g assaulted with the club on left chest and accused no.4
assaulted with a chopper on the right shoulder and the
accused no.4 handed over the chopper to accused 6.1. .
Learned counsel referred to evidence of PW-8,. the
Investigating Officer who in his -cross-examination has
stated that PW-2 has not statéd that. the accused no.1
assaulted on the left chest and aécused 10.4 assaulted with
the chopper on the right shoulder. PW-8 has also admitted
that PW-3S has viot ; stated belore him that the accused left
the clubs and teok oilly the chopper while leaving the place.
He submitted that the Investigating Olficer has stated that
he has stated that. PW-2, PW-3 have not stated that they
.. have seer the accused assaulting PW-1.
LS. The scounsel further referred to the statement
. "under Section 161 of Cr.P.C of PW-2 and pointed out that
~ PW-2 except making general statement, he was not present
"on the spot when the incident took place. PW-2 in the
_ examination-in-chief and cross-examination is nothing but
RP a a eee ORETRENNRERNY
EES
PASSES
ik
improvement. Similarly, he relied on evidence of PW-3 and
submitted that PW-3 had also stated that he has given
statement before the police that the accused nos/1 . and Z
assaulted with the club and accused no.4 assanited 'with
chopper. Accused no.| assaulted over the left eve, accused .
no.4 handed over the chopped in the hands of accused
no.i. However, PW-S in ; ne cross-examination has'
admitted that the PW-3 has not et2 ated that "aecused nos. 1
and 2 assaulted with chub and avensed no.4 assaulted with
the chopper on the lefi. hand and. Fight shoulder. He has
also not stat od ul hat i aoe ist ae ne. 1 handed over the chopper
to the accused 1 : 10. 4. 'Re lying on 1 the evidence of PW-2, 3 and
8, he s submitted that in the evidence PW-2 and PW-3 have
made improve ment 'and their presence at the time of the
incident is-doubtful.
16. The learned counsel submitted that presence of
PW-2 and 3 is doubtful, as PW-1 in his cross-examination,
~ hes stated that after the incident PW-2 and 3 came to the
"spol. However, in the cross-examination PW-1] has admitted
"that, when the incident took place no villagers had come. If
this evidence is appreciated, the presence of PW-2 and 3 is
doubttul.
I/7. Learned Counsel for the appellants relying on EXP] =
statement of PW-1 recorded by CW-12 - Police submitted that,
though PW-1 in his staternent aleges that - aceused "No.4
assaulted with the chopper, however. "in his further statentient .
recorded on 19.12.2000 as per SPR, he has admitted that the
accused No.1 has assaulted, Ot aecused Nowa" He also
submitted that. there is inordinate delay in fling the complaint.
The evidence of PW a injured does not show as to whether
accused No.l. assauited OF. aceuséed*No.4 assaulted and if his
evidence is 'not: acceptable, eveit if the evidence of PW-4 is
considered, fi dees ret prove that the accused No.4 assaulted
PW-1 and he BU bmniited that, the evidence of PWs-1 to 4. who
are the main witnesses viz., imjured and eyewitnesses, their
sevidence is net 'eredible and reliable, as there is inyprovement
and. also cointradictions and submitted that, the trial court
without appreciating the evidence in its proper perspective has
me erroneously 'given a finding that the evidence of PWs-1 to 4
_ the judgment of the trial court requires to be reversed
ere
SUSE
18. On the other hand. Sri.Bhavani Singh, learned State
Public Prosecutor submitted that, the discrepancies pointed out
by the learned Counsel for the accused are not material
discrepancies, they do not go to the root of the prosecution calse.
They are improvernents, but these improvements ever: if ] b. is :
ignored, the evidence of PWs-2, 3 and 4 is credible and 'reliable.
Both PWs-2 and 3 have supported, the case of che prosecution.
that they went to the scene of occurrence . and have seen tne
incident. PW-4 not only has seen the ineident, but has also
accompanied the injured to. the hospital." Hence when there are
injured witness soupled with ite eyewitnesses, the prosecution
has proved tne charge peyond réasonable doubt as against
accused Nos. L Sand 4 He, supported the Ondings of the trial
COUTT.
19. In the hight of the above submissions, the point that
At ete i
arises for consideration is:
© Whether the conviction of accused Nos.1, 3 and 4 calls
for interference?
40. According to the prosecution case, PW-1 is an inpured
PW-I has given a statement before CW-12. In the
sere ste ee apa arenerrmenen neem raucitt
ELEN
On
ie.
shoulder, PW-10 --- Deector has stated that PW-1 had suffered
four injuries. Amongst four injuries, the right hand was
chopped off from almost elbow joint and other lacerated. iiiuries.
The statement of PW-1 in Ex.Pl and the evidence of PW-10 --
PW-i has also stated that, accused Nos.tand°3 assaulted with
2
the club Le.. accused No.] assaulted «with the chab on little -
above the left eye, accused No.2 on, the left chest arid accused
No.4 assaulted with the. chopoer.. No. doubt, in the cross-
examination, he has stated that. accuséd No.4°handed over the
chopper to accused No.1]. °
Zi . To. doubt the statement of PW-l and his evidence
before the court, learned Counsel for the accused had relied on
the further 'st atement af aocused No.l as per Ex.P2. No doubt.
in Ex.P2, there is a contradiction as to the overt act on PW-1. In
. the complaint, he qas stated tnat, it is accused No.4 and in the
further statement, it is stated as accused No.1, however. in his
evidence, he is"consistent as far as the overt act by chopr
Poapaneg-
Nona
mg
"aad
eo
sins
4
Neacd
ange
a
_ accused Ne 4.
. 22. PW-2 though has stated that the accused Nos.] and 3
cassaulted with chib and accused No.4 assa ulted with the
a
wy
i
S
Bad
eS
fe
is
chopper, but his presence is doubtful, as in the crogs-
examination, he has stated that, he gave the statement before
the Police. whereas, PW-8 in his cross-examination has stated
that, PWs-2 and 3 did not give any statement as tothe overt ats. -
by accused Nes.l, 3S and 4. Even in his statement recorded Gy
: under Section 161 of the Code of Criminal Proce dure: pwng 4 aues _
not state that he was present atthe time af incident, "This ists
corroborated by the evidence of PW: 1 Pw- 7 in. his evidence has
stated that, when the accused were present no one. came from
"the village, only after the ACC "ised left" the: place, the villagers |
came. Purther, He fas stated that Pws-2 0 and 4 did not come to - .
the rescue of Dwi _--
23. 'Howe jever, the. presen ence of PW-4 is stated in the
statement 'given by Pw. 1 before the Police as per Ex.P1] and in
"his, evidence and also im the cross- examination. This is. also ae
= "evident from the evidence. of Pw-4, who has. stated that. he was oe oe
Oe: present whe the "accused | assaulting and d has: also stated that te aoe
ie
received by CW-12 at 6.25 p.m. PW-10 --- Doctor in his evidence
has also stated that, along with PW-1, PW-4 had come. This
evidence also shows that PW-4 was not only present al the seene
of occurrence, but also accompanied the injured is the hospical.
No doubt, his statement is not re corded by t @ Police, but that.
lapse on the part of the Police does rot vitias € "the entire < ASE of
the prosecution. As far as presence of P W- 4 is cone ered, pw. 4 :
categorically has stated that. he had scen the incident and tried
to pacify the quarrel. ir the cross-examination, even the
accused have suggested the presence of PW-4:. Hence, there is
no reason to doubt the presencé of the Pw.4
24, Learied 'Counsél. for the appellants had submitted
that, there is an inordinate delay in sending the FIR, however, it
is not in dispute that, the 8 atement of PW-1 was recorded by
CW-12 and. it is not in dispute that CW-12 was not available for
. _ recording ihe evidence as he was dead by thai time, but the
ste -tementn re ad le: in "Ex PI and The evidence of PW-1 corroborates
and there Is to attempt to improve the case except in the
"evidenc e of Pwes- 2 and 3,
25. No doubt, there are some minor improvements and the
"contradictions, bul that by itself does not dislodge the credibility
EA
of the injured witnesses. If Ex.P] and the evidence of PWs-1 and
4 is considered, it clinchingly proves that the injured had
identiNled the accused and further, PW-4 has supported the ease
of the prosecution. as he had seen the incident, When "she.
credibility of the evidence of PW-1 cannot be doubted-as he is.
injured and there is no reason to falsely iiplcate the accused
26. The evidence of PWs-1 to 4 shows that, accused Nos.1
and 3 assaulted with the club, but the -corresvondi« x iniury Na?
shows bleeding, but the weapon used dées net suggest that, it
could have caused /a bleeding injury.on die body of PW-1. Even
injury No.3 is scratches ana is alsé bleeding injury. The evidence
shows that the-avcused Nos, i 'and. 3 assaulted with club but
does hot correspond: with the Injury Nos.2. 3 and 4. May be,
PW-1 has suffered thuse . figurtes, bui there is doubt as to
whether aceused N 08.1 and 3 could have caused such injury by
m cans of ci, 'there is even suggestion that there is possibility
tha ' in the Seufile," such injury might have been caused. The
evidence of PWs-2 and 4 is not credible, but the evidence of
! ° PWs-1 and 4 is Credibie and reliable, which shows that accused
"Nod has assaulted with chopper and PW-10's evidence SUPDOFLS
: the evidence of PWs-1 and 4, which shows that PW i had
suilered grievous injury on right hand, which resulled in
Sa ERE OU UNG INO (CRIES SO cee Sty
Ce
.
a
chopping of his hand by means of a chopper, the trial court on
£
proper appreciation of the evidence has rightly found that
accused No.4 has assaulted with the chopper on the tight mand
of PW-1, However, the findings as regard to accused N
assaulted PW-1 and caused injury ~Nes.2 to. 4... "The
corresponding injuries do not su
have been caused by means of club..
2?. PW-1 though in the statement: has stated that the
accused tried to assault him with intention. to Kill him, accused
No.4 wanted to assault on his head, however, in the evidence,
PW-1 nowhere has stated that there was any threat for his life
except stating thai - he adsdulted on his hand, it cannot be
termed as assault on the vital part of the body and would have
resulted it-death of PW-1.
© 28. -Inthese circumstances, in my opinion, even the
assault by accr annot be termed as an attempt to
. "nurder,. Hewever, accused No.4 has assaulted with the chopper
atid the same is resulted in grievous injury of severi ng of hand
' proves the offence punishable
"from the elbow joint. it certai
"under Section 296 of IPC. Hence, | tnd that accused No.4 has
Sl ane
egest that such imjuries: could |
"Rad occurred about 11 years back and both accused and PW-!]
committed an offence punishable under Section 326 of IPC. As
far as accused Nos.] and 3 are concerned, the evidence is
insufficient to hold that they assaulted PW-1 with the cluk. >
29. As lar as offence punishable under Sec ton Aa 7 of PC
is concerned, there is absolutely mo evidence te a" _ prove "that
accused had trespassed into the land of PW and assaulted, as,
there is a dispute regarding chan net-& bund and even the scene
of occurrence was near the chantiel "1 In these cire athstances, I
find no material to hold that the. accused. have committed an
offence punishable under "Section 447 Sof prc. In these
circumstances, ! Q ass ine follow! ng, |
ORDER
This appes de is Lis partly alto we ed. The judgment of conviction of accused Mos. 1, 3 and a for an offence punishable under Sections 447, 307 read with section G4 of IPC, is hereby set aside, Accused Nos i and G are acquitted and accused No.4 is colvicted fo or: an off fence punishable under Section 326 of IPC. Heard the learned Counsel on the sentence Learned Counsel for the accused No.4 submitted that. ce aeesed No.4 was 92 years at the Ome of the incident. Incident = Ee eee are close relatives, the dispute was as regard to land and there is no more dispute belween the parties. He submitted that. accused No.4 has got a wile and a child and de pene dants- and there was mo serious motive to take away the life. of PWel 'anid incident occurred in a heat of passion in a sudden. quarrel, it is. in these circumstances. accused No 4 could be punis shed - ith fine and sentence may be reduced for the term for whic FL he had already served as undertrial prisoner and coriviction sentence. On the other hand: -S ri-Bhavani. Singh. learned State Public Prosecutor' subinitied sais acersed No.4 has been convicted for. an offerice punishable under Section 326 of IPC, which is punishable,with imprisonment for life or even upto 10 years, as.sucii, reascnable senience be imposeci. fl is mov in dispute that the incident had occurred in a Fs and beth the parties are related to each other. [is also | not re Aisi puts et that, al the time of incident, the accused No.4 was 22, years "ana how almost 11 years have lapsed and as a og S subse er 1en¢ Gevelopment, the parties are in good terms, however, : that by. itself is not a mitigating circumstance not to impose any v-sertence, but at the same time keeping in view of the ~ eircumstane es and aise taxing into consideration that the ial Bah incident had occurred in connection with the land dispute and there was no premeditation to commit the offence. in these circumstances, | find that accused No.4 could be senten ved for a period of 114 years' simple imprisonment with fine of 50,0004 -:
in default, to undergo further S.1. for three montiis". Out of fine:
amount of $50,000/-, 740,000/- be paid te. PW. ] ana #10,000/ - be appropriated towards State eccount. © Accused No.4 sha i. surre nder" before the "trial court to serve the sentence. On failure of the accused No.4 surrendering beiore the trial court, thé tat court shall 'take steps to secure the presence of accused N o.4 anid: cormmit him to prison for serving the sentences, .
Accused is entitled for set-off under Section 428 of Cr.P.C. «dd /KNM f- 7 cS ..
i