Karnataka High Court
State Rep By Kodigenahalli Police vs Moulasab S/O Abdul Khadar on 29 May, 2008
Bench: V.G.Sabhahit, L.Narayana Swamy
IN THE HIGH COURT OF KARNATAKA AT BANGALC SORE a
DATED THIS THE 291° PAY GF rrny , 2008
PRESENT
THE HON'BLE MR. JUSTICE V.G. SABHARIT.
AND eet
THE HON'BLE M&. JUSTICE L. wARATARASWAMY
CRIMINAL APPEAL No.926/2001
BETWEEN:
The State represented by - : .
The Kodigenshaiii Pouce. .. Appellant.
(Sri, Anand K. Navaligiinath, HCGP)
AND:
1. Monlasab, -
S/o. Andel Khadar,
: Aged about 52 vears.
Z. 'Farua ;
- S/o, Moulasab
». Aged about 30 years.
3. Fayaz
S/o. Moulasab,
Aged about 28 years.
4. Sved Basha,
S/o. Moulasab,
Aged about 24 years.
5. Shanvay
S/o. Moulasab,
Aged about 26 years.
Mo
6. Abubkar,
S/o. Moulasab,
Aged about 22 vears.
7. Mohimunnibi
W/o. Moulasab
Mayor.
{All are R'/o. Dodda Main r Village °
Madhugiri Ta,
Tumkur District) Respondents.
iat
"Lhis Cnmi sal "Appeal filed under Section 378(1) & (3) of
Cr.P.C. praying. lo grant Ieive to file an appeal against the
judgment dated 14.5.2001-passed by the Addl-C.J. (Jr.Dn.) and
JMEC., Madhugiri in C.C.No.833/1999 acquitting the
oo respondents/ accused for the offences u/s.'143, 147, 148, 323,
; 324, 566 and. 326 r/iw 149 IPC.
oo | 'his ( Criminal Appeal having been heard and reserved for
judgment, NARAYANA SWAMY .J. delivered the following: -
JUDGMENT
° This appeal is directed against the order passed in ~. CC.No.833/1999 dated 145.2001 passed by the Addl. Civil Judge, (Jr.Dn.) and JMFC.. Madhugiri. In terms of the said judgment the respondents herein are acquitted for the offence punishable under Sections 143, 147, 148, 323, 324, 506 and 326 rw Section 149 of IPC. Being aggrieved by the said judgment 7 the appellant has preferred this appeal. - - --
2. It is the case of the prosecution that on 166. 1999 at 1.00 p.m. in the afternoon, PWail PSI of | Kuriigal Police Station has recerved a message that. the accused A-l to A-7 have assaulted the complzinant and other six members and he has sent the PURI front "Doddaamalur and shifted all the injured persons tothe hospital and a complaint has been lodged as per ix. P+] and he has registered the case and an FIR has been drawn marked as per Ex.P-6. 'Thereatier the PSI has 'Visited the hospital and recorded the statement of the injured | "persons and visited the spot and has drawn the mahazar as per Ex.P-2 and seized the weapons used for committing the offence a marked as Mos.} to 9. On the same dav accused | to 6 have | been arrested and produced before the Court. In respect of the injured persons Pws.] and 2 wound certificates have been produced in which have been marked as Exs.P-3 and 4 and remaining wound certificates have been marked as Exs.P-7, 8, 9 and 10. After completion of the investigation charge-sheet has been filed. lhe case of the prosecution has been. registered in CC No.833/1999, The Court below has framed charges against all the seven accused and the accused pledded not guilty. _
3. The Prosecution has examined its witnéssés PWs.] to ll and produced list of documents 8 pet Ex.Pe] to P-6a and the material objects have been marked a Mos.] to 9, On behalf of the responderits none were oimaitied and no documents have been produced On the basi sof the evidence adduced on behalf of the prosecution and also on behalf of the accused. the Court below proceeded "to. pass the judgment and acquitted the "accused: Being agerteved by the said order, prosecution has | - preferred this 'appeal. it is submitted on behalf of the proseciision that the evidence adduced on behalf of the
- 'prosecution has not been exammed properly by the Court below. Hence the learned HCGP appearing for the prosecution seeks to re-appreciate the evidence adduced on behalf of the prosecution and modify the order by punishing the accused.
4. Now the question before us 1s fo determine as tO, a whether the order passed by the Court below 1S requ t to be interfered with and calls for modification, We answer the above in the negative for the following reasons.
5. The proses 6 ution 'has examined pW -}. Mahaboob Sab -
PW-1] 1s an inne person and } alse the complainant. In his examination-in-chiel he. 'has stated that accused | is his elder brother and contig scoused are his children and about an vers, age in the evening between 8.00 p.m. and 9.00 p.m., svcused 4 106 came to his residence and made galata and he 'was also assaulted On the same date he went to police station to lodge the complaint. Then SI] had intimated him to bring his _ . elder brother who assaulted him. On the next day he went to | | Hindupur to bring his elder brother and while he was waiting at the bus stand, accused again assaulted PW-1. Despite the same he went to Hindupur and came back with his elder brothers and he reached the residence of accused 1, then someone had thrown chilly powder and thereafter accused 3 and 5 assaulted by club and accused | caused injury to his nght leg. 'Thereaiter further he has deposed that in the meanwhile. police came and' took them and he gave his complaint. which was marked as kx.P-]. in the cross-exumination he has deposed that he has not given the complanit but his mother made a complaint and police came and drew the mahazar on the next dav and that hus mother went to the. police station and ascertained that accused 1.3 and 5 have assaulted. Ae was assaulted bv club to his head and accused 5 assauhied him to his right leg by bricks. accused ma 4 and 6 assaulted hi bv hand. In the same cross-examination. : ine has further deposed that during the time of galata, there were only two persons ie.. accused 6, himself and his vounger
- brother ~ Ibrahim. First they assaulted PW-1, immediately he . "lost his conscious, thereafter he does not know who has myured PWs2 to 6 and he has stated that there 1s civil case also filed against them.
G. PW-2 - Ghouse Mohiddin Sab, is also an injured. He has deposed that he has been assaulted by accused No.2 and if accused 3. He has deposed in the examination-in-chiel that complainants have been assaulted by clubs. bricks and stones and his children also have. been "assiulted . and | accused 2 *, assaulted by club and he has clarified 'that there "were only two injuries caused to him and his son Rafia (PW-5) has sustained fracture to his fest hand thai and also sustained head injury. in his cross-examitation he hes deposed that he has not seen respondent assaulting PWs.4 and 3 and he has also not seen, who assaulted the Gther insured persons.
7. PW-3 - Ibrahim has been examined. He suflered a head _ injury by accused No.1} and he collapsed and he lost conscious.
He regained conscious only after two davs in the hospital.
8 _ BW-4 ~ Iliaz is the son of Ghouse Mohidin Sab (PW-2). ~ He has deposed that accused No.5 has hit on his head with stick ~ and accused No.6 also assaulted him.
§_ PW-5 - Rafiq has deposed that PW-1 was hit by accused No.1] that someone threw the Chilli Powder to his uncle, thus he went to avoid, then accused No.1 assaulted with club to his head and he deposed that Mos.] to 9 are not the same which are os brought to the Court. On the said date uccused have brought Seemejali clubs and at paragraph 5 in the cross-exammmation he' has stated accused No.7 has thrown the Chilli Powder.
[O. PW-6 - Lal has deposed that PWail . 5.and himself have been assaulted ®y the accused 'persons with stones and clubs. Accused No.6 assauited with sticks and accused No.7 assaulted him with stones {In his examination-in-chief he has specifically stated that accused: No.6-has assaulted with stone to his right fore-head and sciinsed No.7 by hand and he does not know who "were the others who have assaulted and he sustained injurv on 7 his tore-head and he has deposed that Mos.] to 3 were not the carte that were used at the time of assault and accused have
- used Seemejali Clubs for assaulting and he disputed that Mos.5 'to ¥ stones were used during assault.
1}. PW-7 - Sabjan has been examined by the prosecution who turned hostile.
/2. PW-8 -- Venkatachala also turned hostile.
/3, PW-9 -- Dr.D.T. Venkatesh is the doctor. who jesued os wound certificate by treating all the injured persons. in his | chief examination he has stated that he was working during . 1992 at Kodigenahalh and on 166.1999 at7.45 pie. PW-2 was brought myured and ne wreeted iim and he has found the following mjunes: | 7 (1) An injury on 'nis fore-head of 3 inches x 2 ems (2) An injury on his left leg and an abrasion of i inch x | cm.
fhe. in respect of FWl he has stated that PW-1 sustained sinaple injuries on his body and on forehead. 'here was a small . "minor injury and the wound certificate was marked as Ex.P-4 "and the sighature was marked as Ex.P-4(a) in his cross- exam 'agtion.
~ : AS. PW-l0 -- Basha turned hostile.
: [G. PW-11 -- S. Mahadevappa was the PSI and the Investigating Officer.
|4. From the complaint submitted as per Ex.P-1 it can be seen that there is discrepancies left by the injured in the complaint. 'The injured persons have not stated about the 10 actions of PW-7. Accused No.7 1s the wife of accused No.l - 7 No allegation 1s made against her in the complaint. However | in the deposition PW-! has stated for the first time that some . one has thrown chilh powder on him and thereafter he was assaulted and he also doés not speak abst PW-7, PW-2 also never speaks about PW ; about throwing chill powder. Onlv one witness | Le. : PW "5 has deposed in 'his cross-examination that aooused 7 has thrown chit powder to his uncle. Except the staternent of PW-S, no other injured wrtnesses have stated against accused No.7. isi the complaint also there is no such statement: In respect of the injuries PW-1 has stated that he "sustained a head injurv and also injuries to his nght leg.
ig *. pw-9 ~ Dr.D.1. Venkatesh 1s the Doctor. He has given ne "opinion about PW-1 that he has sustained injury on his body, abrasion and very simple injurv on his left leg. He has not noticed injuries as deposed in the examination-in-chief by Pw.1 and also the injuries to his right leg.
19. PW-2 has stated in his examination-in-chief that he sustained head injury and injury to left ribs and he sustained be 11 Doctor has stated PW-2 sustained the injury on his fifehead 3 Inches x 2 cms and an abrasion:. minor injery caused to left les as against right leg as stated in his examination-in-chief Prosecution also produced the wound certificate issued in respect of other injured persons PW 3 1 PW-6. In fact PW-2 has stated that his son Retig ( PW-5 \. sustained fracture on his right thumb is ako not forthcoming in the doctor's wound certificate. In view of these contradictions, it 1s not possible to believe the version of the prosecution as the prosecution has "stated: that the injured persons sustained bleeding injuries and * lood stained clothes were recovered but the same have not been marked as Mos and the weapons used for the offence are mS aiso disputed by the prosecution witnesses. PWs.1, 2 and ~ others have stated accused No.7 has thrown chilli powder, but the chilli powder sample has not been marked. In the absence of these important materials to prove the case, the Court below has rightly come to the conclusion that prosecution has failed to prove the case.
120. In view of the above the order passed by tie 2 Court ielow = for the offence punishable under Sections 143, 147, tag, 323, 324, 506 and against the accused is. liable to be conti med, , Hence the following order.
Zl. Writ appeal is dismissed. "The onder dated 14.35.2001 passed by the "Add|.C -r Dn.) and. JMEC., Madhugirt in CC. No. 833) 1989 5 is confirmed. a ;