Karnataka High Court
State Of Karnataka By Saidapur Police vs Shivarajappa S/O Channappa Mali Patil ... on 29 May, 2009
Bench: Anand Byrareddy, A.N.Venugopala Gowda
IN THE HIGH COURT OF KARNATAKA %
CIRCUIT BENCH AT GULBARGr1_°.'~"'
DATED "rms THE :2 9 '°" DA}? OF M:w;%%2009[ X T V
PRESENTa = i «
THE H()N'BLE MR. msT:C1?;ANAw%D é
AND?
THE HON'BLI:'i MR.HJSTICAE'A;:NLVF;1§{5§§{}PALA GOWDA
CRMINAE, A}?}5.~'E1AI;:T§fO; 1%5i'2';*20e2
Siesta '
By Saida;;u1' géoiige - APPELLANT
(By sm;,%Angna3ha .De:§ai, 1§.dditiunaI spp )
,__4S:'czII3JI'a:i§. Secretary,
ysgfs' '
L «.'fa1nina2111a
Sfu. Ramappa
@ Ramanna Badar
£18 years
5 hi
3. Naramappa
S59. Saibanna Dongs
Harijan,
33 years I
4. Ashappa
S/0. Narasappa Badyal H
33 years '
5. Hanmantha
S/0. Narasappa Badyéfii '
28 ywrs V
6. _ .
S/0. '
7. V' "
S/o. Namsappa Ba('i3%_aI"
.....
, ' . _Si:a. Sawa'ia_mma Harijan,
_ Years.
" ._ Q__e:c":"A;gric';1jI'i'i1re
V --V 9.
S/<§.v.S3wa1amma Harijan
A' ' yaars,
* .,_()e;:<:: Agriculture
....1;').Sayanna Sabanna
S/0. Hanmantha Mordasc Harijan
58 years
8
1 I Hanmanth
Sic. Sayanna @ Sal:-anna Mundas Harijan
28 years
000 2 Agriculture
12.Basappa Baswamj
Io. Barappa Kawali Kabber
33 years
13.Narasappa
S/0. Mock Ashappa Ijjjeli }Iaxi_i3i2 V . ' ~ _
Occ : Shephard
Miniwater Wgirk'
.. S,'/0. I*€agapp&--.Y§§gr.Byadar
'V .13 years
" . "S/o. Haéfzgpfinna Harijan
'~33
Gcc :«;_Agricuiture
V' 1' [ilW\?'L.''Sabanna@ Sayhanm
. S10. Sayanna Gadusya Harijan
53 years
§
1 8. Balappa Chandappa
Chattikindi Harijan.
31 years,
Occ: Student
19.Ashappa vv
Sic. Lachamappa
@ Lachamayya Chaltakindé _ Q' -- ._
53 years
20. Anjappa
Sfo. Mamppa "
33 years
Occ: Coolie
S/30. Chafié.appa« K3..'i_6Ch_1IET Harijan
73'ye.a1_"s' . " " _.
.. S/0'. Chanwppa Iigdcchut Iiarijan
" . SE0. Hjatliipanna Harijan
29"yeaz¥s
V n .2_4.A'rm13anna
';S/'o. Sabanna Agasa:
"48 years
Occ: Mason
25.Tippanna
Sm. Hanmantha Kawali
Waikiii
48 ycars
Occ : Mason
All are residents of:
Dupalli Village,
YadgirTa1uk, .
Gulbarga District A M _RESP()NDENTS
(By Sh:-i. Ashuk B. Meflage, }\d:yucéi1e""{';1':""Shri. Balm Ran
Mangane E53).
_ "='a.--.~s:_'=a?;H="~--_ '
i_This_C'r§:_nina}. filcd under Seulion 373(1) and (3)
Cr.P.C;_b3' the fs)r-€,he--St:*._te praying that this Hotfble Court
may be'pléased'vwto"<~grafii--..}ééve to fife an appeal against the
judg¢men£ 'dal'edV Vl'v2.06_.2C02 passed by Lhc II Additional S.}.,
Guljbarga in SCA.N0.77f*.94, acquitting the respondents 5 accused
NQJEL' fie-.A xand 6,""'"F"Vlo 24 and 26 to 28 for the oflénces
. Section 143, I47,}43,443,504, 506, 427, 323,
324; 342, 307 and 302 r/w 149 ofIPC.
Appeal having been ward and rtmerved at
Gulbarga Circuit Beach on 23.3.2009 and coming on for
" _'PIOn()i$£i0t$II1t?Ill of Jndgxncnl' this day at the Principal Bench,
" BYRAREDDY1, delivered the fallewinge
JUDGMENT
Heard the Addiliona} Siate I'Ai1b'ii:; «_ ' Counsel for the respondents. _
2. This appcal by the SE;1_l:;iis.ag::j;1st hlliegsgdgrixcnl of the Trial Court acquitiing Loffences punishable under smog; 143, %14?,kk1A;;3%:;,;;g;5o4,kk427, 323, 324, 326, 341, 342, 149 of the Indian Pena} 7: 3 V
3. stated as follows:
Ivl 'E'sV 61%" the prosccuiiun that accused no.1 ' one Bhimashcppa had developed enmity Manda! Panchayai clczclions of their Manda}, said lujfmfe bean held in the year 1993- This enmity had V'_AAc:a::_1"ijj:':1ued ku faster. On 10.2.1994 at l(}a.m., while one % ..._' A:¢".'V'I_£}Iiransab . {he deceased, PW-1 M Chandrashckar, PW-2 Hanmanih, PW-4 ~ Bhimashappa, PW-6 - Sabanna and PW'- @
-.1 I0 Hanumanthi and one other Parvathamma were their meal in their house Accused 1113.1 alungséiith J accused is said to have come and; »shc_)_uted_-'that'* zip.' away with Bhimasheppa and abused in 'When PW'-»i0 Hanurnzmthi wast» assaulted with a stick. is giiegegi itiiat aeeesed ~'izus.2 to 4 assaulted PVJ---2 with an was beaten with sticks and an;-'ai.*:t;ViV'_t.vy n(2esi.i5i[t'u.. Accused 1193.9 143 29 assaulted"Miifé};tsiitifi.;wiI}1-- 1;.;m.;:.-,.s; anti sum, while twisting his leg,iivihiiei'ah,§e.:i§i-ckjng him and punching him on his ehest, ifiihis deathlapari from causing injuries " to PW-4 aadpww.
A to have lodged a complaint of the incident at ibefore the Police Sub--Inspeetor of Saitbiprur Police Q' Stetigm and a case was registered and a First Infmznaiion Repvrt it iaéras despatched to the Court. PW'-10 was sent to the Medina! Officer, Siddapur, Post-mortem of the deceased Miransab was % ccnductcd on 11.2.1994. It was on 18.2.1994 that accus-cd no.2, accused 110.24, accused 119.25 and accused arrested. A voluntary statement of accused and an axe was rcccvcrcd from :'i1'i'i31".-. 1 invcsligaling cfficcr anestcd and rcccrdcd lhcir mccvércd from accused $113.5 and a case having been handed cvcr to ci"'~vI)c!'c:-.{ivcs for further invc:s£igesr1--iun;'~w..9'1 }nvc.$ii_1;a1ifigw.01'ficcr had rcccrdcd further slatcmcxgtfi on 18.3.1994 and 19.3.1994 as wc1l 35119011 was an 9.4.1994 11114120 accused vulunlary skate.-mcnts of accused 11:33.98; 9"-e;_'11:L}V9i'..1_1_j\\.a/crc recorded and an axe: was recovered fmm the handle of an axe fmm accused no.9 and
4.311;: handle of an axe Ecru accused 110.11. Investigation 9 up by PW--3 on 21.6.1994, win; in hm: had rcccivcd wound ccriificalcts from 1.1113 Mcdicai Officer and a sketch, of the place of occurrence, from an cnginccr cf the Public Works {'3' Department. Ht: had thcrcaflcr completed filed a. chargemshccl.
4. The: case having been comiiii_1ied_ xlo Cour: {Io Additional Sessions Iudgc, cheagfges {ht-, above mentioned of. Al the trial, 16 wilncssos Exhibits P-1 to P~--2'}' to 7, On an record, the trial court having -- 11):: present appeal is filed. MAE o t1it;e:.£*, be noted that the acuuscd 11133.1, 5 .' V. procetsdings before the Triai Court and them stand abated.
" ~~ The Additional State Public Pmamculor would oontcnd "ii the Trial Couri has failed to appreciate the evidence on in its proper pcrspceutive. It is contended 1ha£ the Trial Court has magnified minor variations in the evidence of the % 10 prosecution, while it has faifcd to appreciate that there we no contradictions or omissions of a degree to negate the prosecution.
The Additional Stale Public:=.._Pro_stci1lor,. ii has painsiakingly respective accused emd__£hc wc:;poa:._u::cd By "1'ht:_SIf._ii.i accused and the person assaulicdiiasii the body of such victim, in minu£c'dctai§_'iwi1h* i'to,§}ic cvidcncc of the wi1nc:§2.¢§cs.._ ' -record.
Iliiszoconiciidcidiby ifiddilioxml State Public Prosecutor lha£}P'W'--1 is air "c.y:c§wiA[v'ncss who has deposed as to the incidcm ' Sakhich with the case of the prtxscculicn. PW-I has £ia:tésilcdit1§i:'j_£.§idividual ovcrl-acts committed by each of the &ccu5flV.i.°;. The Trial Court has not assigltsd reasons to reject the "ii of P'W-1 This cvidcnct: of PW-I is amply suppmtmi the evidence ofPVJ-2 who was aiso irzjuwd in the incidcnl and the specific evidence as regards the assauil by Ike accuscd <5 ll of the deceased. This tsvidcncc of PW-2 in is substantiated and supported by {Ina evidence who are cycwwiincsscs lo the inciduril ':1s¢w¢'_',H as vwhtiais ' the complainant and PW--l0, who evidence of these wilmzsscs caljiiot be t1'r:gaie£:i.=. Themsamc is uonsistcnt and has nod': to iihxtliablc or false. There are no omissions which could have {be same. The Trial 31:: '6 {hat PW--5 and pwnvhags 1u:1:1駧:'V"i3a{$siii_:i¢s;s...: §';3fzi ihc other hand, there was aznplt:
Inatcriai to have convicted lbw atwuscci " V' _ emit ti'::.;ugI;acuus1eii"tio.1 who is lhc main accused is no more.
T. Slate Public Prosecutor has taken this cuori cr;!£§t}::;iA$;eiy through the mcurd in support of the above nuonlcnlious lo demonsiraic that the reasoning of the A' below, in acquiiting [be accused, is no! whufly juslificd. 8 12
6. Reliance is placed on a judgment of Court in Jakki Selvaraj and another vs. {he 1}' Coimbatore, (2007) 3 SCC ('3r;',.5,.4 5?«1,l' ts is circumstance that minor vaIi,atiuti':sV ii: the 'ev_£dence" .. the witnesses would not be a for nlegsting any witness in tutu.
The Cuufisel Scpreme Court has eInphasized"tl2e_ t'l:lst__i_i in each case as to what extei1tftht;_ wmrthy of acceptance and merely because, some lllllti court cunsiders the same to be institfllcient folrplecingv reliance on the testimony of a witness, it » jchaes :;lot.V:3eccssa1ily follow as a matter of law that it must be H respects as well. The evidence has to be sifted with Nouns} discrepancies in evidence are those " .vt'lii~:_:h are due to nunnal errors of ubservatiun, normal mess of f:nemur_~,r due to lapse of time, due to mental dispusitiun etc, These normal discrepancies do not affect the credibility of the 23 case. 11 is the material disurepancics alone: that Viviiiilsi. be material to hold that a cast: has nut been made _ whim the testimony of a witnsss isgiiscard:sii"in----:j;§ari"'\ris-#1-vis' some uthcr co-accused persons, ihz1iv.ca1,iz'1sii _sc":~ llixziirtzgissill to discard his evidence in tutti. _
7. Per contra, ~!l_it: cziiinsisi' the iiicctiscd would highlight the reasoning of {its judgment and would seek t£_.i emphasize {hai lht:
omissions malarial discmpancics and cannot norms! discrepancies and therefore, "whi_sh'ihc Stair: seeks ls ground the appeal is V is nu gmund made uni for intcrfcrcncc and iilhsil be dismissed.
i ii We have, in turn, examined the reward at icngih.
"§B¢:ifore considering whether there is any trend to rcapprccisis the evidence, the reasoning cf the Trial Court with reference is the record is exmiiincd. It is scan ihal the Trial Cuurl has '£7 . 34 recorded a finding [11:11 the only witnesses who have supported the prosecution case are relaied to each other namefy, PW-1 and PW-2, Chandrashekar and Hanamant are the Bfihimasheppa. PW-10 Hamnanihi is ' Bhimasheppa. FW'-6 Sabamm is the gran'ds<J:dVef " » Apart from this, PW-5 Hfliilflflfli, L1?
Yaflappa, according to _{he V" were.VVeye-u%\§i'ii1esé§es hi' V the incident. These eiiijv-}§:'vei'~e.were ireaeiedv as hostiie \'Vi'.I13S55('§S"by .i:.hc afiéeeirrepile ui" cross-examination, there ii: .110 maieriai'Vc.{iei!.ed-.Lesupport the prosecution _ _9- nexi recorded a finding than it is V' _ "the that the accused had caused damage v"z:),{fj..ihe eompiainani by removing the roof of the hAc-'use gend.vLi.f§1ei'eby committed mischief. It is however, found by theeduri below [hat net 3 single witness has deposed In {his .;:e1. The Trial Court has furiher reeurded e finding that " V' ""eeeurding la the evidence of PW-1, the incident had «occurred 6 "Wm Whtfl} PW'-I aiungwith others were having their H26§ii"'thc padashala of the house However, in his crussmxétfilinafidtig - has stated that he and others wcrc:v'ésss2iui{«:d*<t£uI~d gr ' the mom, especially the £3». L» not clear as tn whether they or outside. the same. The was stated that bleeding injsirfics and tlwrc was bluxxt then, the victims were blood spilling at} the way and tu bleed on the road when: they lay Vunmnsci-q_£ts.aI£JngwiEiitV the dcccascd Miransab and that the :of" the namely, Hanmanti, Bhimasheppa and " blond-stzxincd and that an regaining, PW»! had carried CW--9 Hanamant inside the A. hqusekitd it was three: huurs later, that the Poiicc had come and the injured persons in a jmsp to the Hospitai. The Trial V' " ''tCuuri has noted that the Investigating Officer has not taken the bioudsiained clothes of the injured not maiemd v[h'e 'bIgxxi stained earth from the spot of the incideni.
10. From the evidence, the 'Ca::;v:t'i_h:i's.Tr.:ecz)ue:;;Vi'<§iVi: the allegations as regards the assgmii byééeaciz. of L» injuned witnesses. The ihzfl eesauiied Hanmam wiua an iilavlkaccused no.3 assaulted left side and Nar.mppaam;gs;;; with a stick. While accused accused no-6 and accused no.7 assaulleii Mi}: sticks and axes and that aee§;$ed.no.9 Miransab with the bull end cf axe and .A ezssaulied with a stick on his chest and accused V}4g§§i;;c a stick while accused 110,16 iwisled his left leg no.l4 assaulted with the but! end cf an axe on his A and accused 110.10 assaulted with a siiok an his waisi V" iihereby killing Miransab an the aspoi. II. The Court then notices the evidence of the doctor whu had examined Hamnan1PW'--2 and PW-10 in issuing wound certificates. and caused to Hanmanl. There was one. gi*ieveus"in_i§wa'y sirfiflle injuries. Whereas injuiies ' 'E0 JPVV'-4' Bhimasheppa were griewpus .ifiiiinai§.h2fe"e-and a simple injury and lwo injuries were simpie in nature and the of ideaztlzief "}'rfiri1i1sabiiwvas due io shock and hernerrhiige. a {sf uries.
It ii';+;.__eii;,:i(e:_i iifivm}-he said doctor in the course of his cruise-eXamina£i0n_1§i;i§ in Medina Legal cases generdfly, the ' would also diseiuse the names of the persons 'wide may'li:i_vé caused lhe injuries Huwever, in Hue present case on hzaiid, ithe wuund certificates Exs}-'-14 lu P-16 did not the names of the assailants.
While he has also admiited lhai the injuries fuund on the deceased Miransab, namely, on the lower part uf left iower % 18 limb, the left upper arm below the shouldcr4Vjgjli:Il1i'{._V_and dislocation of lull shoulder juinl, were nm on his body. In is alsu mad that i§1e_;lmclur h;4g§"a:i§$~':§u§-;d l_hat--.g1i"» post-murlcm, he had found digeslcl§«¢fu2fd lhcilhgs deceased Miransab. Havingllrfigagd lull" "'of'ljPW-2' ll Hartman! the incidt:nvlr whet!"-Atlxeiy wetv all having their meal and vegetables and further PVV-4;' i1'z1~}/hag to state that each of belbrc the aszsauli by lhc acuusrlid if dicd on the :spuL after having curl:-mrlgexl undigested fund wuuld have been " '_$lom1-lhhllhf the duped" - sud. This leads iu ii suspicion A the death of the dweascd-
the evidence: (sf PVV-2, [he Trial Court has x that the said witness claimed {hat accused no.2 l '*._ha'ss2iulit:d him with a stick on his lei} shoulder, accuscd no.3 l ' "lassaultrzd him with a slick an his hand and lag, accused no.4 @~ also with 3 stick on his back while Ashappa ass*auiHi.e_di Bhimasheppa with an axe on his head, accused and aeeused no.8 with an axe wiiile iiieciesed-i'I1u__.i9.;:ssiiei'ied Miransab wiih lhe handle of an} axe, iaeeused 121.2,'? 3. Vivilh ii; siisplic s and accused null with a viriiijihfla stick, while accused 1112.15 110.16 twisted his left leg the left wrist leading toy spot. However, in *fx;::r:a1":"ii»1'v1'zili<i§;i;:""the;witness has stated lhai his elulheisgwerie end neither were the clothes of ether perse':1si.i'~._iHe'iiihas further stated Ihai Hannxanii had %)iee<iiiig""'i'njiuries on her mouth, but the Medical had examined her had not found any injuries sign: {_'z1c3isi£i1.ii The mm court has further observed that the said eiaimed El1alPW~4 was assaulted 3 to 10 limes wiih i and 20 [u 25 limes with sticks and that Mimnsab was ' '''':issau}led 10 10 15 times with buii end of:-in axe and 25 In 35 times with siieks He himself is said to have been assauiled IO @ respective accused persons he demonstrate that no relianee can be pieced on the said evidence.
Further, referring to the evidence of neiieed. that the witness has stated ihg...
Saidapur had met him in the =viii}a_ge ii -iii {hee i' had narrated the fiicls relating ineidenil same was reduced to writing he' signature on the complaint. Bei.:inv..his has stated that his slate:i3_en£_ vvihe house though his signature was ebtaineci Station. On the other hand, PW--l4 the "}?eii_ee':Stib-Inspeeker has stated that the said ' lodged an oral eemplainl at the peliee siatiun ieduced to writing and a ease' ' was registered Hence, ihese lwu versions have lead the eeurl to i "ii the place of filing of complaint and the manner in which H was done. The Trial Ceurt has also recorded that [he FIR was said to have been lodged on 10.2.1994 at 5.30pm. It was said Z» to have been dispatched on the same day at 6.30 it had reached the CJM, Yadgir at l.3{)a.m., on 11.2 ;j};99ét :7
14. The Court has neticed t_ha.t___the has net" » L4 explained the fate of the comp}.-aliiit J Duppalii and the Court has 'as: to the' L' correctness of the eompigiyt. tékenexeepfion to the fact that the blmximstaiagdtt¢::;'13§e§;§§§§g:t§'PW-6 has refened to, were never it», efficer, which was crueiétt to __ With reference in the evidence of PW'-10*,' C{t1lti'1: her version at the incident is teiégliy ttineon:;iStent___}§{itiI1 the medical evidence. She has aisu e 'jgmm; was bloud spin on the Padashula by the injured there was we evidence of any such blood wileszteii By the Investigating offieers. The panchanama is also as regards the bloodstains at the spot. The panehanama is _ silent as regards the removal of the roof of the house by the accused persons. The Cuurl has 21330 found that she has 23 cuniradiclcd the evidence of PW--2 and Pwwi. cvidcncc has nut inspired cunfidcncc: of the C¢3ur[~. _ Ifiiisi fiishiun that the Trial Court has hcl:3;t§iVaii' 'tbs: Pw--2 Pw--<1 PW-6 and Pw--l0 btsing i i1e;§$i1sisten! '.&3n§}v"ui11;§:§E;§§3:s!eVL' in uunvboraling the evidence of _c.)l3'1c.-Vi*'::2.1'; (i'1':'i1 absence of independent x~rilnc:s:s't5A2s.,_"':in {He VTA}%\:_-5 and PW37 who were 3293 to bc cyt; wimgsssgi having, it wuuid be whoily Eu like i_3L'33n$i$iéfil and contradictory cvidcnicéwtéf. Tht: Trial court has also ubscrvefi. ihaf .' iht: proscculion, the enmity of accused no.1' "w.as'wi'Eh Bhiinasheppa and not Mirzmsab. in any Mirfivirwb }1acv§"'f'1o enmity with accused nos. 9 lo 21 to accused to assauil and causc his death.
Cui'i:Jusiy; is no assault un Bhimashcppa by accusui nui VV ' ' V. at all.
15. It is further found by the Ceuri {hat {he pusocsutiun had alleged that accused 1105.22 it.) 28 stood outside the house é 24 with weapons in their hands and wrongfully and 10 and other family mornbcrs of tho coming out ofthc boosts. Howevcii? ii Pw~--l0 have not stated to restrained them from threatening them with weapons. masons that the trial court hats con}? investigation is imgiropcr in holding Ehai the to establish the guiit of thc:
accusisd Bciyomjli cioubi.
it 1.6. of these discmcpanoics which art: noted . above.' oannot be said to be normal discrepancies, as H the: Supreme Court, as they are certainly mat¢::iéit.:di$;crcpanc*ics which the State has failcad to demonstrate: A ff igéiixot being reasons for tlrw iriai court to have taken a View that prosecution has {Edict} to cstabtish ihe guilt of the accused beyond aft masonabic doubt.
25 Since from an cxaminatiun of the rcmrd wc.'..[i'%:ad"i-}19jz:.iV'il1:: Trial Court is fully justificd in its cunciusionas,"
[here is no wammi for at mappreciafitiofi' éofvihc t-;\:--is_i"e::ag:<:: i':§h {Ii-*5 present cast: can hand. We thgxtfom ihcVi.h}:"w "
trial court and dismiss the appcr$1."V«