Karnataka High Court
State Through Public Prosecutor Koppal vs Sydusab on 18 March, 2011
Bench: Subhash B Adi, N.Ananda
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 18TH DAY OF MARCH 2011
PRESENT
THE HON'BLE MR. iUSTICE SUBHASH B. ADI
AND
THE HON'BLE MR. JUSTICE N. ANANDA
c.MJNAiAiAki9l9J2°5
BETWEEN:
STATE THROUGH PUBLIC
PROSECUTOR, KOPPAL, ... APPELLANT
(BY SHRI.V.M,BANAKAR, ADDL. S,P.P.)
AND
I. SYDUSAB,
S/O HUSSAINSAB HIREMANI,
MUSLIM, AGED ABOUT 41 YEARS,
OCCUPATION: AGRICULTURE
2. MEMBER IMAMSAB IMAMSAB,
S/O HUSSAINSAB HIREMANI,
AGED ABOUT 43 YEARS,
OCCUPATION: AGRICULTURE
3. HUSSAINSAB,
S/0 IMAMSAB HIREMANI,
MUSLIM, AGED ABOUT 19 YEARS.
OCCUPATION: AGRICULTURE
4. SYDUSAB,
5/0 IMAMSAB HIREKOPPA,
MUSLIM, AGED ABOUT 50 YEARS,
OCCUPATION: AGRICULTURE
5. HUSSAINSAB,
5/0 RAHIMANSAB HIREMANI,
AGED ABOUT 45 YEARS,
OCCUPATION: AGRICULTURE
ALL ARE R/O MUDHOL,
YELABURGA TALUK,
KOPPAL DISTRICT. RESPONDENTS
(By Sri.R.BDESHPANDE, ADV. FOR Rl-R5 ABSENT)
This Criminal Appeal is filed under Section
378(1) and (3) of the Code of Criminal Procedure, by
the State P.P. for the State to grant leave to file an
appeal against the judgment and order of acquittal
dt.28-07-05 passed by the S,J, Koppal, in
SCNo 125/00 acquitting the respondents-aceused for
the offenees p/u/as 143, 147, 148, 326, 333 r/w 149
of LPC.
This criminal appeal coming on fbr final hearing
this day N Ananda J delivered the follo
, ing:
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Mudhol village. PW.8 - Jagadevayya, the then AS! of
Yelburga P.S., PW. 11- Sugarshavali, the then police
constable of Yelburga P.S., with some home guards
were on bandobast duty. On 16.4.2000, at about 8.00
a.m., procession in connection with Moharrum festival
was proceeding in front of Goolibasappa temple of
Mudhol village. There was a quarrel between the group
led by accused and some of the prosecution witnesses.
When PW.8 intervened to pacify the quarrel, accused
Nos.1 to 5 warned PW.8 not to interfere and asked him
to keep quite. Accused Nos. 1 to 5 formed into an
unlawful assembly. Accused No.2 assaulted on the
chest of PW.8 and accused No.3 assaulted on the
mouth of PW.8 with a club, as a result, two of his teeth
in upper jaw were broken. The first information was
lodged by PW.8 and he was treated by PW. 1 -
Dr.N.Laxminarayana Rao in Government Hospital at
Yelburga. PW. 1 had noticed foilowing injuries:
a) Lacerated wound over the upper lip measuring
2cmxlcm
ear%_L:twJ2
5
b) Bleeding present.
c) 2 incisors of teeth broken
d) Tenderness over the right chest.
5. The Investigating Officer visited the place of
occurrence and seized the incriminating articles
including the banian (MO.2) and shirt (MO.3) of PW.8.
The Investigating Officer recorded the statements of
witnesses and recovered club at the instance of
voluntary statement made by accused No.3 and
submitted charge sheet
6. During trial, PWs. 1 to 15 were examined. The
documents as per Ex.P1 to P16 and MO'sl to 4 were
marked. The defence has not marked any documents.
7. The version put forth by the defence was that,
the accused were assaulted by some of the prosecution
witnesses. In that connection, accused No.1 had
suffered injuries, a case was registered against some of
the prosecution witnesses and they were tried in
S.C. 121/2000. Therefore, this case should have been
fl-i
6
tried along with S.C No.121/2000, as the instant case
and S.C.121/2000 were a case and a counter case.
PW.8 in order to support some of the prosecution
witnesses had lodged a false complaint.
8. The learned trial judge on appreciation of
evidence has held;
I. Then was no need to try this case along with
S.C.No.121/2000. PW.8 was not an assailant
and he was not arrayed as an accused in
S.C.No. 12 1/2000.
II. The occurrence took place in a procession.
Therefore, the evidence of PWs.8, 11, 12 and 15
that accused Nos. 1 to 5 had formed into an
unlawful assembly and accused No.2 had
assaulted PW.8 on his chest and accused No.3
assaulted on the mouth of PW.8 with a club,
cannot be accepted.
III. There is inconsistency between direct evidence
and medical evidence In the sense, PW 8 has
deposed that two of his teeth of upper jn sere
broken; onli one tooth was produced before the
court: as per medical ci idence there was
dislnr itiop nf tj' teeth. I
7
W. The learned trial judge has made distinction
between breaking of tooth and dislocation of
tooth to discard the evidence of PWs.8, 11, 12
and 15.
V. The evidence adduced by prosecution witnesses
is not free from reasonable doubt more
particularly when accused No.1 had also suffered
injury in the same incident.
9. We have gone through the evidence adduced
on behalf of prosecution. We find that PW.8 -
Jagadevayya, ASI of Yelburga P.S. was on bandobast
duty; PW. 11 - Sugarshavali, police constable of same
police station was also on bandobast duty. Except
PWs. 12 and 15 other eyewitnesses did not support the
case of prosecution and they were declared as hostile
witnesses. Therefore, the proof of prosecution case
entirely rests upon the evidence of PWs.8, 11, 12 and
15 and also on medical evidence given by PW. 1 -
Dr.Laxminarayana Rao.
8
10. Before adverting to ocular evidence we deem
it proper to refer to medical evidence given by PW, 1 --
Dr.N.Laxminaravana Rao.
PW. I has deposed; at the relevant time, he was
working as a Medical officer in Government Hospital at
Yelburga. On 16.04.2000 at 11:30 a.m., he examined
PW.8 and found following injuries:
a) Lacerated wound over the upper lip measuring
2 cm x 1 cm
b) Bleeding present.
c) 2 upper incisors were broken
d) Tenderness over right chest.
PW. 1 has opined that, injuries found on PW.8
could be caused due to assault with a club.
PW. I was subjected to extensive cross
examination regarding assessment of age of injury and
also regarding dislocation of tooth or the breaking of
tooth,
9
PW. 1 was also cross-examined with reference to
manner of assault to elicit his opinion that, PW8
would have suffered injuries on his gums, inner part of
upper lip, if he had been assaulted on his mouth with
a club which had resulted in breaking/dislocation of
his two teeth.
11. In our considered opinion, the discrepancies
sought to be highlighted by the defence relying on the
medical evidence of PW. I cannot be accepted. Whether
the teeth of PW. 1 w broken or dislocated, the fact
remains that, PW.8 had suffered lacerated injury
measuring 2 cm x 1cm on his upper lip due to assault
with a club.
12. PW.8 has deposed; he as assaulted by
accused Nos,2 and 3. On 16O42OOO. at about 08:00
a.m., there was Moharrum procession in front of Gooli
Basaveshwara temple of Mudhol village. At that time,
there as a quarrel between the iccused and his
brothers. PW 8 tried to pac' f', th it arrel that
10
time, accused No.2 warned PW.8 not to interfere. So
saying, accused No.2 assaulted on the chest of PW.8.
Accused No.3 assaulted on the mouth of PW.8 with a
club, as a result, two of his teeth were broken. Some
of the prosecution witnesses and other constables
rescued PW.8. PW.8 came to the jurisdictional police
station at 11:00 am., on 16.04.2000 and lodged first
information marked as per Ex.P7. He was treated by
PW. 1 in the Government Hospital at Yelburga.
13. Much of the cross-examination of PW.8 has
been directed about the case, which was initiated for
the injuries suffered by accused No.1 and other
persons. As already stated, PW.8 was not the
assailant and he had not caused injuries to accused
No.1. Therefore, the case initiated and tried for the
injuries suffered by accused No.1 and others at the
hands of rivals of accused No.1 cannot be treated as
counter case and it was not necessary for the
prosecution to explain the injuries suffered by accused
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No.1. PW.8 was on bandobast duty, he did not have
enmity or motive to falsely implicate the accused, so
also, PW. 11 who was also on bandobast duty.
14. PW. 11 has deposed that; at the time of
occurrence, PWs.8, 11 and other home guards were on
bandobast duty. When the Moharrum procession came
near Gooli Basaveshwara temple there was clash
between two groups, one lead by CW. 11 - Gudsab and
CW. 12 Murtujasab and other group lead by accused
No.1. When PW.8 intervened to pacify the quarrel,
accused No.2 assaulted him on chest, accused No.3
assaulted on the mouth of PW.8 with a club. As a
result, two teeth of upper jaw of PW.8 were broken.
CW.9 - Basavaraja and CW. 10 - Basappa intervened
and saved PW.8 from the hands of accused.
During cross-examination, it has been suggested
to PW. 11 that there was group clash between the
accused and some of the prosecution witnesses. In the
discussion made supra we have narrated the
12
relevancy of case filed against some of the prosecution
witnesses for assaulting accused No 1 and others.
Therefore, we find that the evidence adduced by PW. 11
leads substantial corroboration to the evidence given
by PW8.
15. PW.12 has deposed; on 16.042000, at about
05:30 p.m, Moharrum procession started in Mudhol
village. On that day, at about 08:00 a.m., the
procession reached Gooli Basavanna temple. At that
time, the accused picked up quarrel with PW, 12 and
his brothers. PW,8 intervened to pacify the quarrel.
The accused told that there was no need for Police to
intervene in the quarrel. Accused No.2 assaulted on
the chest of PW.8. Accused No.3 assaulted on the
mouth of PW.8 with a club. There was bleeding from
the mouth of PW.8 and two of his teeth were broken.
The clothes worn by PW.8 were stained with blood.
13
During crossexamination, PW, 12 has denied
that PW. 12 and others had attacked the group of
accused No. I and they had assaulted accused No. 1.
16. It is the definite evidence of PWs.8 and 11
that when there was a quarrel between persons
belonging to accused and persons belonging to PW. 12,
PW.8 tried to pacify the quarrel. At that time, accused
Nos.2 and 3 assaulted PW.8 as aforestated,
17. PW. 15 - Kasimsab had deposed; that on
16.04.2000, there was Moharrum procession in
Mudhol village. On that day, at about 08:00 a.m., the
procession reached near Gooli Basaveshwara temple.
At that time, there was a quarrel between the persons
belonging to group of accused and persons belonging
to group of PW. 12 At that time, accused warned PW 8
not to interfere, Accused No.2 assaulted PW.8 on his
chest, accused No.3 assaulted on the mouth of PW.8
with a club. He suffered bleeding injury and one of his
teeth was broken, The other tooth broke and fell down.
14
The uniform and clothes worn by PW.8 were stained
with blood.
During cross--examination, it has been suggested
to PW.15 that accused No.1 was assaulted in the
incident and that accused No.1 and others had lodged
first information against CWs. 11, 12, 14 and 15 and
they were tried and acquitted in SC. 121/2000. There
was rivalry between the partymen of accused and
partymen of PWJ5.
18. Tn the discussion made supra, we have held
that, PW.8 was not arrayed as an accused in
S.C.121/20000. The defence has no case that PW.8
who was on bandobast duty had assaulted accused
No.1 and others and caused injuries. Therefore, the
defence version that prosecution should have
explained the injury suffered by accused No.1 in the
instant case has no basis. Thus, we find that PWs,8,
11, 12 and 15 have given consistent evidence that
accused No.3 assaulted with a club on the mouth of
- --t-
I -- - - -
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PW.8 and one of his teeth broken and other tooth was
dislocated, In fact, the dislocated tooth was marked as
M.O.4 before the trial court. The blood stained banian
and shirt of PW.8 were marked as M.Os.2 and 3. The
club which was used to assault PW.8 was marked as
M.O.1.
19. The medical evidence given by PW. 1
Dr.N.Laxminaravana Rao would lend substantial
corroboration to the evidence of PWs.8, 11, 12 and 15.
20. The learned trial Judge has held that there is
inconsistency between medical evidence and direct
evidence. The learned trial Judge has taken much pain
to distinguish between breaking of teeth and
dislocation of teeth. Even if it is assumed that the
prosecution had failed to prove that the injuries
suffered b PW.8 were not grievous in nature, that
cannot be a ground to discard the evidence of PW.8,
PW. ii PW.12 and PW. 15 that accused No.3 assaulted
:
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on the mouth of PW.8 with a club to deter him from
discharging his duties as a public servant.
As regards the assault attributed to accused
No.2, evidence of PWs.8. 11. 12 and 15 would reveal
that accused No.2 had assaulted on the chest of PW,8,
however, we do not find corresponding injuries on
chest of PW.8. Thus, the evidence adduced against
accused No.2 is not free from reasonable doubt.
21. The evidence of PWs.8, 11, 12 and 15 does
not prove that accused Nos. 1 to 5 were the members of
unlawful assembly. Admittedly the incident of assault
on accused No, 1 took place when two parties, one lead
b persons belonging to accused and other lead by
persons belonging to PW. 12 confronted each other. In
the circumstances, it is not possible to hold that
accused Nos. I to 5 were the members of unlawful
assembly. Yet the fact remains that, there is
consistent. credible evidence given by PWs.8, 11, 12
and 15 that ac••cused No3 assaulted on the mouth of
17
PW8 with a club to deter PW.8 from discharging his
duties as a public servant. The learned trial Judge has
discarded the prosecution evidence mainly relying on
the injuries suffered by accused No.1. PWs.8, 11, 12
and 15 have not deposed that accused No.1 had
assaulted PW.8 and the defence has no case that PW.8
had assaulted accused No. 1. PW.8 was not an accused
in S.C.No,121/2000. Therefore, in the instant case,
the prosecution was not bound to explain the injuries
suffered by accused No.1.
22. In view of the above discussion, the judgment
of acquittal of accused No.3 cannot be sustained, in
the discussion made supra, we have held that accused
No.3 assaulted on the mouth of PW.8 with a club to
deter PW.8 from discharging his duties as a public
servant. Therefore, the acts committed by accused
No.3 would squarely attract an offence punishable
under Section 332 of IPC,
fJ r'--
lx
23. Accused No.3 had assaulted PW.8, ASI of
Yelburga P.S. who was on bandobast duty to maintain
law and order in Moharrum procession and accused
No.3 assaulted PW.8 to deter him from discharging his
duties as a public servant. When PWs.8. 11 and other
home guards were posted to maintain the law and
order during procession to prevent untoward
incidents, accused No.3 had no justification to assault
PW.8 from discharging his duties as a public servant.
Therefore, taking into considering the maximum
punishment provided under Section 332 I.P.C., we
deem it proper to sentence accused No.3 to undergo
imprisonment for a period of two years and pay fine of
Rs, 1O,OOO/.
25. In the result we pass the following:
ORDER
The appeal is accepted. The impugned judgment of acquittal of accused Nos. 1 to 5 for offences 19 punishable under Sections 143, 147, 148, 326, 333 read with Section 149 of 1.P.C. is confirmed.
Accused No.3 Hussainsab is convicted for an offence punishable under Section 332 I.P.C.
Accused No.3 is sentenced to undergo simp le imprisonment for a period of two years and pay fine of Rs, 1O,OOO/, in default, to undergo simple imprisonment for a period of three months. The order of the trial court regarding destruction of prop erties (MOs. 1 to 4) is confirmed. The period of deten tion undergone by accused No3 during trial is given set off as provided under Section 428 CrPC.
Sd/ JUDGE Np/Rsh.