Karnataka High Court
Raju S/O Madaiah vs State Of Karnataka By Yalandur Ps on 30 October, 2013
Author: N.Ananda
Bench: N.Ananda
-1-
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30TH DAY OF OCTOBER 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL APPEAL NO.859 OF 2006
BETWEEN:
1. Raju s/o Madaiah
Aged 32 years
Agriculturist
R/at Honnar Village
Yalandur Taluk
Chamarajanagar District.
2. Mahesh @ Puttaswamy
S/o Madaiah
Aged 34 years
Agriculturist
R/at Honnar Village
Yalandur Taluk
Chamarajanagar District.
3. Shivanna s/o Madaiah
Aged 28 years
Agriculturist
R/at Honnar Village
Yalandur Taluk
Chamarajanagar District. ...Appellants
(By Sri.Y.S.Shivaprasad., Adv.)
AND:
State of Karnataka
By Yalandur P.S. ...Respondent
(By Sri.B.T.Venkatesh,SPP-II)
-2-
This Criminal Appeal is filed under Section 374(2)
Cr.P.C. against the judgment dated 27.3.2006 passed
by the P.O., F.T.C., Kollegala in S.C.No.39/2003,
convicting the appellants-accused no.2 to 4 for the
offences p/u/s 326 and 307 of IPC and sentencing them
to undergo R.I. for 5 years and shall pay fine of
Rs.3,000/- and I.D., to undergo imprisonment for 6
months for the offence p/u/s 307 of IPC and further
sentencing them to undergo R.I. for 3 years each and to
pay fine of Rs.2,000/- and I.D., to undergo
imprisonment of 6 months for the offence p/u/s 326 of
IPC and further ordered that both the sentences of
imprisonment shall run concurrently.
This Criminal Appeal coming on for hearing this
day, the Court delivered the following:-
JUDGMENT
The appellants (hereinafter referred to as accused Nos. 2 to 4) along with accused No.1 and accused Nos.5 to 8 were tried for offences punishable under Sections 143, 144, 147, 148, 114, 341, 324, 326 and 307 r/w 149 IPC in S.C.No.39/2003. The learned Sessions Judge acquitted accused Nos. 1 and 5 to 8 of offences punishable under Sections 143, 144, 147, 148, 114, 341, 326 and 307 r/w 149 IPC. The learned Sessions -3- Judge convicted accused Nos. 2 to 4 (appellants herein) for offences punishable under Sections 326 and 307 IPC and sentenced them to undergo rigorous imprisonment for a period of 5 years, besides, imposing fine of Rs.3,000/- with default sentence for an offence punishable under Section 307 IPC. They were also sentenced to undergo R.I. for a period of 3 years with fine of Rs.2,000/- and default sentence for an offence under Section 326 IPC. Therefore, they are before this Court.
2. The learned SPP would submit that State has not filed appeal against the acquittal of accused Nos.1 and 5 to 8, so also against the acquittal of accused Nos. 2 to 4 for offences punishable under Sections 143, 147, 148, 341 r/w 149 IPC.
3. Heard Sri.Y.S.Shivaprasad, learned counsel for accused Nos. 2 to 4 and learned SPP for the respondent- State.
-4-
4. In brief, the case of the prosecution and interse relationship of some of the prosecution witnesses is as follows;
The accused and prosecution witnesses except PWs 6 and 15 are from Honnur village, Yelandur taluk, Chamarajnagar district. On 28.01.2002, there was quarrel between these accused on one side and some of the prosecution witnesses on the other side. In the said quarrel, the mother of accused No.2 was injured. Some of the prosecution witnesses herein were also injured. On 28.01.2002, accused No.2 lodged first information against the prosecution witnesses namely, PW-1 Basavaiah and PW-16 Mantaiah.
On the following day i.e., 29.01.2002, some of the prosecution witnesses had gone to Yelandur police station to lodge the first information against accused in relation to the incident of assault that had taken place on 28.1.2002. After lodging the first information, prosecution witnesses namely PW-1 Basavaiah, his wife PW-3 Siddamma and PW-16 Mantaiah and others travelled in an autorickshaw from Yelandur to Honnur -5- village. After reaching Honnur village, they alighted from auto rickshaw and they were proceeding near the petty shop of PW-5 Mallesha. At that time, accused Nos. 2 to 4 and other accused persons formed an unlawful assembly. They were armed with deadly weapons. They attacked prosecution witnesses and caused grievous injuries to them, with such intention and knowledge, if PW-1 or PW-16 had died by the assault committed by them, accused would have been guilty of an offence punishable under Section 302 r/w 149 IPC. 5. In view of acquittal of accused Nos. 1, 5 to 8 and acquittal of accused Nos. 2 to 4 for offences punishable under Sections 143, 147, 148, 341 r/w 149 of IPC, which has attained finality, the following points would arise for determination;
(i) Whether the prosecution has proved that accused Nos. 2 to 4 assaulted PW-1 and PW-16 with deadly weapons near the shop of PW-5 in Honnur village at about 2.30 p.m. on 29.01.2002 with such intention and knowledge and by -6- such assault, if PW-1 or PW-16 had died, accused Nos. 2 to 4 would have been held guilty for an offence under Section 302 IPC, thereby accused Nos. 2 to 4 committed an offence under Section 307 of IPC?
(ii) Whether the prosecution has proved in the course of same transaction, accused Nos. 2 to 4 assaulted PW-1 and PW-16 with deadly weapons like choppers, knives, billhook and caused grievous injuries on PW-1 and PW-
16 thereby committing an offence punishable under Section 326 IPC?
(iii) Whether the learned trial Judge has properly appreciated the evidence on record?
(iv) Whether the impugned judgment calls for interference?
(v) To what order?
6. In order to bring home the guilt of accused Nos.2 to 4, prosecution has relied on the following;
(i) Motive
(ii) Eyewitnesses account PW-1 Basavaiah (injured eye witness), PW-4 Prakash, PW-5 Mallesha, PW-9 -7- Mallikarjuna, PW-10 Lingaraju and PW-16 Mantaiah (injured eyewitness).
(iii) Medical evidence
(iv) Recovery of incriminating material objects from the scene of incident.
7. PW-1 Basavaiah was the injured eyewitness. As per medical evidence given by PW-6 Dr.Shivaramu Mallegowda, he had examined PW-1 Basavaaih at 3.30 p.m., on 29.01.2002 in Primary Health Centre, Yelandur and found following injuries:-
(i) An incised wound over the left side of the chest mg. 6' x ¼ inch which was skin deep and red in colour.
(ii) A whole on the left inner aspect of the left leg at middle of the calf muscle mg.
¼ x ¼ inch, it was round in shape, with bleeding.
(iii) compound fracture of left leg and the fracture of left 4th rib.
PW-16 Mantaiah was also an injured witness. PW-6 examined PW-16 on 29.01.2002 at about 5.25 p.m. and found following injuries:-
-8-
(i) An incised wound over the left and right occipital region mg.3x2 inch with scalp deep, injury was bleeding and was red in colour.
(ii) An incised wound over the left forehead mg.3x2 inch and it was bone deep and red in colour.
(iii) Incised wound over the left index finger mg.6x3 inch, it was bone deep and it was bleeding and joint was dislocated.
(iv) Left ring and middle finger were auto amputed at the middle region and bleeding was present.
(v) A scratch over the left side of the back mg.6x ¼ inch and it was red in colour.
(vi) fracture of metacarpal of proximal phalyax.
(vii) X-ray of the skull revealed fracture of right frontal bone.
(viii) CT scan report of K.R.hospital communited fracture of outer table of right frontal bone.
(ix) Fracture of left side of occipital region.
PW-6 has opined that the injuries suffered by PW- 16 were grievous in nature and they could be caused by -9- weapons like sickle, billhook and chopper. He has also ruled out the possibility of above injuries being caused by clubs.
8. From the evidence of PW-6, we find PW-1 and PW-16 had suffered injuries due to external violence and due to assault by deadly weapons. At this juncture, it is necessary to state that during cross- examination of PW-6 by the learned counsel for accused nothing is brought out on record to discard the evidence of PW-6. Therefore, it can safely be inferred that on 29.01.2002, PW-1 and PW-16 had suffered grievous injuries due to assault by deadly weapons.
9. The prosecution has adduced evidence of PW-1 Basavaiah and other witnesses to prove that on 28.01.2002 at about 8 p.m., there was quarrel between the family members of accused No.2 and some of the prosecution witnesses. In relation to the incident of assault, accused had lodged first information with Yelandur police against some of the prosecution witnesses. On the following day, i.e., 29.01.2002, at
- 10 -
about 9.30 a.m., PW-1 and other prosecution witnesses had gone to Yelandur police station to lodge first information against the accused and others in relation to the incident of assault that had taken place at about 8.30 p.m., on 28.01.2002. The prosecution has proved there was immediate motive for the accused to assault prosecution witnesses (PW-1 & PW-6).
10. The law is well settled. The motive could be a reason for the accused to assault and it could also be a reason for prosecution witnesses to falsely implicate the accused. Therefore, relevance of motive depends upon appreciation and acceptance of evidence adduced by prosecution. If prosecution evidence is found credible, consistent and acceptable, the motive would provide additional incriminating circumstance against the accused. If the evidence adduced by the prosecution is discrepant and untrustworthy, then motive would come to the aid of the accused to hold that they have been falsely implicated.
- 11 -
11. Adverting to evidence of eyewitnesses, it is necessary to state that PW-1 and PW-16 were injured witnesses. The other eyewitnesses were PW-3 Siddamma wife of PW-1 Basavaiah, PW-4 Prakasha son of Basavaiah, PW-1 Basavaiah, PW-5 Mallesha, PW-9 Mallikarjuna and PW-10 Lingaraju. Before appreciating the evidence of injured witnesses, it is necessary to state that injured witnesses would be least to disposed to spare real assailants and substitute them with accused.
12. PW-1 Basavaiah has deposed the incident of assault that had taken place on 28.01.2002. PW-1 has deposed that on 29.01.2002, they had gone to Yelandur police station to lodge first information about the incident of assault that had taken place at about 8. p.m., on 28.01.2002. They returned to their village in an autorickshaw. After alighting from the auto rickshaw, they were proceeding towards their house. PW-16 was also proceeding towards his house. Accused were waiting to way lay them. Accused No.2 Raju assaulted on left leg of PW-1 with a knife and bones of
- 12 -
his left lower limb were fractured. Accused No.4 Shivanna assaulted on the left side chest of PW-1 with a chopper. From the evidence of PW-6, we find that PW-1 had suffered incised wound over the left side of chest measuring 6" x ¼" and had also suffered compound fracture of left leg and fracture of 4th rib of the left side. There are no reasons to suspect evidence of PW-1. The evidence of PW-1 is supported by medical evidence given by PW-6. Much of cross-examination of PW-1 is concentrated regarding weapons held by each of the accused, manner of assault, the position of PW-1 vis-a- vi accused when PW-1 was assaulted.
13. In my considered opinion, when PW-1 was simultaneously assaulted by the accused, it was hardly and possible for him to have noticed the manner of assault. The evidence of PW-1 gives brond features of assault by accused Nos. 2 to 4. The incident of assault had taken place during afternoon in the midst of the village. There was no identification crisis. Accused 2 to 4 had assaulted PW-1 with deadly weapons. The
- 13 -
weapons of assault were stained with blood. They were seized during investigation.
14. PW-3 is the wife of PW-1. She had also accompanied PW-1 to Yelandur police station. PW-3 has deposed, they returned from Yelandur to Honnur in an autorickshaw. After reaching Honnur, they alighted from the autorickshaw, at that time PW-1 and PW-16 were attacked by accused. PW-3 has deposed that accused No.2 assaulted on left lower limb of PW-1 (her husband) with a long knife. She has also given details of assault by other accused who have been acquitted. It is not necessary to appreciate her evidence against the accused who have been acquitted. Thus, we find that evidence of PW-1 that he was assaulted by accused No.2 finds substantial corroboration from evidence of PW-3. PW-3 being the wife of PW-1, would be least dispose to falsely implicate the accused. The cross-examination of PW-3 is concentrated on the direction from where accused came and reached the place of incident, distance between the assailants and the victims and distance between the place of incident. She has been
- 14 -
extensively cross-examined regarding the manner of incident and weapons held by each of the accused. In my considered opinion, it would be difficult for the witness to give minute details and graphic version of assault. Therefore, there are no reasons to suspect the evidence of PW-3.
15. PW-4 Prakasha is the son of PW-1 Basavaiah. PW-4 has deposed that accused No.2 assaulted on leg of PW-1 with a chopper. There is some discrepancy in the evidence of PW-4 regarding the nature of weapon, but the fact remains that both long knife and chopper are cutting weapons and they are deadly weapons. PW-4 was a student. He was aged about 14 years. There are no reasons to suspect the evidence of PW-4.
16. PW-5 Mallesha was running a petty shop near the place of incident. PW-5 has deposed that on 29.01.2002 at about 2.30 p.m., PW-16 came to his shop and wanted to purchase beedies. He searched his pocket and told that he was not in need of beedies, thereafter, he told PW-5 that he would go to his house.
- 15 -
At that time, accused Nos. 2 to 4 and other accused (since acquitted) came and attacked PW-16 and assaulted him. Accused No.2 assaulted on the head of PW-16 with a long knife. PW-16 fell down and he held his hands across his head. Accused No.2 assaulted on the head of PW-16 with knife, the blows landed on left middle finger and ring finger. Both the fingers were cut and severed at the middle. Thereafter, accused fled away from the place of incident.
PW-5 has also given evidence regarding spot inspection and seizure of incriminating articles from the place of incident. During cross-examination, it was suggested to PW-5 that cut and severed index finger was seized from the place of incident and it was shown to him. It was also suggested to PW-5 that after the incident of assault, the police had visited Honnur village and took PW-16 Mantaiah to hospital. From the cross- examination of PW-5, we find that he was neither interested in injured prosecution witnesses nor he was inimical to the accused. Therefore, there are no reasons to suspect his evidence.
- 16 -
17. PW-9 Mallikarjuna is an eyewitness. He has deposed that accused No.2 assaulted on the left side of chest of PW-1 Basavaiah with a chopper and accused No.3 Mahesha assaulted on the left side of chest of PW- 1 with a chopper.
18. In the discussion made supra, I have referred to medical evidence given by PW-6, which would reveal that PW-1 had suffered injuries on his chest. Much of the cross-examination by learned counsel for the accused is concentrated on the facts such as the place of incident, the place where witnesses alighted from the autorickshaw and distance between the places where PW-1 and PW-16 were assaulted. From the cross- examination of PW-9, we do not find that he was related or friendly with the injured witnesses or he was inimical to the accused. Therefore, there are no reasons to suspect the evidence of PW-9.
19. PW-10 Lingaraju is an eyewitness. He has deposed that after PW-16 Mantaiah suffered severe injuries on his head, he held his hands across his head,
- 17 -
at that time, accused No.2 assaulted on the head of PW- 16 with a knife and blows landed on left fingers of PW- 16 Mantaiah. The left middle finger and index finger of Mantaiah were cut and severed. Accused Nos. 3 and 4 assaulted Mantaiah with choppers and caused injuries to him.
The cross-examination of PW-10, more or less is similar to cross-examination of PW-9 and much of the cross-examination is concentrated on insignificant facts. PW-10 has deposed about the distance of the place of assault and the place where cut and severed fingers had fallen. There are no reasons to suspect the evidence of PW-10.
20. PW-14 Gurulingaiah is an eyewitness. PW-14 has deposed about the injuries suffered by PW-1 and PW-16 and has deposed that the accused were assaulting PW-1 and PW-16, when they were proceeding towards their houses. PW-14 has deposed the incident of assault which had taken place on 28.01.2002. During cross-examination of PW-14, nothing is elicited to discredit his evidence.
- 18 -
21. PW-16 Mantaiah was the injured eyewitness. PW-16 has deposed about the incident that had taken place on the previous night i.e., at about 8 p.m., on 28.01.2002. PW-16 has deposed that accused No.2 assaulted on his forehead with a chopper and also on his left hand with a knife. There is some discrepancy in the evidence of PW-16 regarding assault on his forehead and also on his fingers. It is relevant to state that PW- 16 was assaulted with deadly weapons and the assault was simultaneous. In the circumstances, if there is some discrepancy in the evidence of PW-16 regarding the nature of weapon held by the accused and manner of assault, that cannot be any ground to discard his evidence. The substratum of evidence given by PW-16 does not suffer from any discrepancy.
22. The evidence given by Investigating officer and other witnesses relating to seizure of incriminating articles during investigation, the seizure of weapons of assault from the house of accused No.1 and also recovery of cut and severed part of fingers of PW-16
- 19 -
from the place of incident is consistent and credible. Therefore, I hold that prosecution has proved that accused Nos. 2 to 4 had assaulted PW-1 Basavaiah and PW-16 Mantaiah with deadly weapons.
23. The next point for consideration is, whether the learned trial Judge was justified in holding that accused Nos. 2 to 4 were guilty of offences punishable under Sections 326 and 307 IPC.
24. The learned trial Judge has disbelieved the evidence adduced by the prosecution to prove that accused Nos. 2 to 4 and accused Nos. 1, 5 to 8 were the members of unlawful assembly and the common object of which was to commit the murder of PW1 and PW-16. The learned trial Judge has disbelieved the evidence of prosecution that these accused are guilty of rioting and all the accused were armed with deadly weapons. PW-6 Dr.Shivaramu Mallegowda has not deposed that injuries suffered by PW-1 and PW-16 are sufficient to cause death in the ordinary course of life. During the course evidence, PW-6 has deposed that injuries
- 20 -
suffered by PW-1 and PW-16 were grievous in nature and they had suffered fractures. It is not clear from the evidence on record that accused Nos. 2 to 4 had assaulted PW-1 and PW-16 with such intention and knowledge and by such assault, if they had caused the death of PW-1 or PW-16, they would have been held guilty of an offence punishable under Section 302 IPC. The prosecution has not proved that injuries suffered by PW-1 and PW-16 are sufficient to cause death in the ordinary course of life. The learned trial Judge has not invoked Section 149 or Section 34 IPC.
25. In a decision reported in 1992(3) Crimes 630 in the case of Pashora Singh and another vs. State of Punjab, the Supreme Court having found that the injuries suffered by the victim are dangerous to life, has held that the accused is guilty of an offence punishable under Section 326 IPC. The Supreme Court has held that the prosecution was not able to prove among two accused, who inflicted injury No.1 on head and therefore, it would not be safe to convict the accused for an offence under Section 307 IPC.
- 21 -
26. The learned trial Judge, without noticing these aspects, convicted accused Nos. 2 to 4 for an offence punishable under Section 307 IPC. Thus, on re- appreciation of evidence, I find that the prosecution has proved accused Nos. 2 to 4 had assaulted PW-1 and PW-16 with deadly weapons, caused grievous injuries to them and committed an offence punishable under Section 326 IPC. Therefore, I hold that accused Nos. 2 to 4 are guilty of an offence punishable under Section 326 IPC. The acts committed by each of the accused were in agreement with each other. They had shared common intention.
27. The learned counsel for accused would submit that the sentence of imprisonment imposed for an offence under Section 326 IPC is severe. The incident of assault had taken place on 29.01.2002. Accused had suffered trauma of trial and post conviction trauma. Accused have dependents to care for. Accused do not bear criminal antecedents and they are not habitual offenders.
- 22 -
28. The learned SPP would submit that accused Nos. 2 to 4 assaulted PW-1 and PW-16 with deadly weapons such as chopper, knife and billhook. PW-1 had suffered compound fracture of left lower limb and fracture of left 4th rib and had suffered incised wound measuring 6x¼ inch on the chest. The incident of assault was premeditated as the accused were waiting for the arrival of the injured from the police station. PW- 16 Mantaiah had suffered multiple cut injuries. His left ring and middle finger were cut and severed at the middle region. Therefore, the learned trial Judge was justified in sentencing the accused 2 to 4 to undergo rigorous imprisonment for a period of three years.
29. An offence under Section 326 IPC is punishable with imprisonment, which may extend to 10 years or life with fine. As could be seen from the evidence adduced by the prosecution that the offence of assault was premeditated, otherwise, there was no reason for the accused to arm themselves with deadly weapons. It appears accused were furiated by the
- 23 -
incident of assault that had taken place on 28.01.2002. PWs 1 and 16 had suffered multiple grievous injuries. In the circumstances, sentence of imprisonment for a period of 3 years cannot be termed as harsh or severe.
30. Therefore, I pass the following order:-
The appeal is accepted in part. The impugned judgment is modified. The conviction of accused Nos. 2 to 4 for an offence punishable under Section 307 IPC is set aside and they are acquitted of an offence punishable under Section 307 IPC. Accused 2 to 4 are convicted for an offence punishable under Section 326 r/w Section 34 IPC and the sentence imposed for an offence punishable under Section 326 IPC is confirmed.
The period of detention undergone by accused 2 to 4 during trial and during pendency of this appeal is given set off under Section 428 Cr.P.C.
Sd/-
JUDGE Srl.