Karnataka High Court
B Shivalingappa vs State Of Karnataka By Chitradurga Rural ... on 3 March, 2014
Author: N.Ananda
Bench: N. Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 03RD DAY OF MARCH 2014
BEFORE
THE HON'BLE MR.JUSTICE N. ANANDA
CRIMINAL APPEAL No.258/2007
BETWEEN:
1. B SHIVALINGAPPA
S/O BHANGYAPPA, 58 YEARS
2. BHANGYAPPA
S/O ERAPPA, 82 YEARS
3. THIMMAPPA @ THIMMANNA
S/O BHANGYAPPA, 42 YEARS
4. MALLIKARJUNA S
S/O POOJARI SIDDAPPA, 30 YEARS
5. RAJAPPA @ RAJASHEKHARAPPA
S/O BHANGYAPPA, 49 YEARS
6. N A NAGARATHNAMMA
W/O SHIVALINGAPPA, 49 YEARS
7. DASAPPA
S/O ERAPPA, 70 YEARS
8. SIDDAPPA
S/O POOJARI KARIYAPPA, 57 YEARS
9. JAYAPPA
S/O POOJARI SIDDAPPA, 25 YEARS
10. KARIYAPPA
S/O POOJARI SIDDAPPA, 27 YEARS
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11. SRINIVASA
S/O POOJARI SIDDAPPA, 21 YEARS
12. SHIVAPPA @ SHIVANNA
S/O DASAPPA, 30 YEARS
13. BHANGYEPPA
S/O DASAPPA, 20 YEARS
14. VASANTHA
S/O DASAPPA, 24 YEARS
15. ERAPPA
S/O DODDA THIMMAPPA, 24 YEARS
16. RAGHAVENDRA
S/O DODDA THIMMAPPA, 22 YEARS
17. GOVINDAPPA
S/O MOODALASEEME HUCHAPPA
AGED ABOUT 42 YEARS
18. VENKATESH
S/O KAARIYAPPA @ SOLLAPURADA KARIYAPPA
AGED ABOUT 32 YEARS
A-1 TO A-3, A-5 TO A-7, A-12 TO A-18
ARE R/O HIREGUNTANUR GOLLARAHATTI
CHITRADURGA TALUK & DISTRICT- 577 501.
A-4 & A-8 TO A-11
ARE R/O HUNASEKATTE GOLLARAHATTI
CHITRADURGA TALUK & DISTRICT- 577 501. ... APPELLANTS
(BY SMT. NALINA, ADV. FOR SRI S K VENKATA REDDY, ADV.)
AND:
STATE OF KARNATAKA BY
CHITRADURGA RURAL POLICE
CHITRADURGA - 577 501. ... RESPONDENT
(BY SRI B VISWESWARAIAH, HCGP)
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THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C.,
AGAINST THE JUDGMENT DATED 31.01.2007, PASSED IN
S.C.NO.85/2005, ON THE FILE OF THE ADDITIONAL SESSIONS
JUDGE, FAST TRACK COURT AT CHITRADURGA & ETC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants 1 to 18 were arrayed as accused no.1, to 3, 5, 6, 9, 12, 14 to 17, 21 to 24, 26, 30 and 31 and they were tried along with accused no.4, 7, 8, 10, 11, 13, 18, 19, 20, 25, 27, 28, 29 and 32 for offences punishable under Sections 143, 147, 148, 504, 324, 326, 307, 302 r/w 149 IPC.
2. The learned Sessions Judge has acquitted accused no.4, 7, 8, 10, 11, 13, 18, 19, 20, 25, 27, 28, 29, 32 of offences punishable under Sections 143, 147, 148, 504, 324, 326, 307, 302 r/w 149 IPC.
The learned Sessions Judge has acquitted accused no.1, 2, 3, 5, 6, 9, 12, 14, 15, 16, 17, 21, 22, 23, 24, 26, 30 and 31 of offences punishable under Sections 504, 307, 302 r/w 149 IPC.
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The learned Sessions Judge has convicted accused no.1, 3 and 5 for an offence punishable under Section 304 Part-II IPC.
The learned Sessions Judge has convicted accused no.6, 12, 14, 15, 16, 17, 21, 22, 23, 24 and 26 of an offence punishable under Section 326 r/w 149 IPC.
The learned Sessions Judge has convicted accused no.2, 6, 9, 12, 14, 15, 16, 17, 21, 22, 23, 24, 30 and 31 of an offence punishable under Section 324 r/w 149 IPC.
The learned Sessions Judge has convicted accused no.1, 2, 3, 5, 6, 9, 12, 14, 15, 16, 17, 21, 22, 23, 24, 26, 30 and 31 of offences punishable under Sections 143, 147, 148 r/w 149 IPC.
Therefore, accused no.1 to 3, 5, 6, 9, 12, 14 to 17, 21 to 24, 26, 30 and 31 have filed this appeal.
3. Accused no.1-B.Shivalingappa, S/o Bhangyappa and accused no.2-Bhangyappa, S/o Erappa died during 5 pendency of appeal. On 21.02.2014, this court has recorded abatement of appeal as it relates to accused no.1 and 2.
4. The State has not filed appeal against acquittal of accused for offences punishable under Sections 302 and 307 r/w 149 IPC. The State has not filed appeal against acquittal of accused no.4, 7, 8, 10, 11, 13, 18, 19, 20, 25, 27, 28, 29, 32 of offences punishable under Sections 143, 147, 148, 504, 324, 326 r/w 149 IPC.
5. I have heard Smt.Nalina, learned counsel for accused and Sri B.Vishweswaraiah, learned HCGP for State.
6. The accused were tried for following charges:-
"That you on or about 1.7.2003 at about 8.00 a.m. in Hireguntanur Gollarahatty village on the road of Anganavadi School all the accused were members of unlawful assembly the common object of which was to commit cognizable offence to assault the deceased Siddappa S/o Oda Thimmappa and his followers the reason for that was regarding the differences arose for the "Bisiyuta" and thereby committed an offence punishable under section 143 of IPC within my cognizance.6
2. That you on the aforesaid date, time and place were members of unlawful assembly the common object of which was to commit murder of deceased Siddappa S/o Oda Thimmappa you are armed with deadly weapons and committed rioting and thereby committed offence punishable under section 147, 148 of IPC within my cognizance.
3. That you on the aforesaid date, time and place being the members of unlawful assembly the common object of which was to assault and commit cognizance offence in which you accused abused the deceased Siddappa and the other witnesses in filthy language such as "Soole Makkala, Nimma Hendranada" annoyed and insulted them knowing fully well that they will provoke and breach of peace and thereby committed an offence punishable under Section 504 r/w 149 of IPC within my cognizance.
4. That you accused on the aforesaid date, time and place being the members of unlawful assembly you A-1 was holding Machhu, and you A-2, A-4, A-8, A-14 holding clubs A-3, A-5, A-6, A-7 were holding clubs and handle of axe assaulted the deceased Siddappa and so also 7 you other accused assaulted CW.2, 3 and caused simple injuries to the witnesses and thereby committed an offence punishable under section 324 r/w 149 of IPC and within my cognizance.
5. That you accused on the aforesaid date, time and place being the members of unlawful assembly armed with deadly weapons caused grievous injuries to Rajanna and Thimmappa and thereby committed an offence punishable under Section 326 r/w 149 of IPC and within my cognizance.
6. That you all the accused on the aforesaid date, time and place being members of unlawful assembly the common object of which was that to commit murder of deceased Siddappa S/o Odo Thimmappa you accused no.1 holding Machhu in your hand and gave blow to the head and leg, you A-2, A-4, A-8, A-14 gave blows with clubs to deceased Siddappa, you A-3, A-5 gave blow with Machhu to the legs, you A-6, A-7 gave blows with stones and caused grievous injuries and you A-12, A-13, A-15, A-16, A-17, A-19, A-20, A-21, A-22, A-23, A-25 and all the accused caused injuries because of which the deceased Siddappa bin 8 Odo Thimmappa died and you caused murder and thereby committed an offence punishable under Section 302 r/w 149 of IPC and within my cognizance.
7. That you on the aforesaid date, time and place being the members of unlawful assembly the common object of which was to commit murder of deceased Siddappa bin Odo Thimmappa and CW-2, 3 and others if that act would have been completed you ought to have committed the murder and thereby committed an offence punishable under Section 307 r/w 149 IPC and within my cognizance."
7. As could be seen from the charges framed by the learned Sessions Judge and evidence adduced by the prosecution, as many as 32 accused were tried for being the members of unlawful assembly and causing death of deceased Siddappa and grievous injuries to PW.2- Thimmanna, S/o Kadurappa and also voluntarily causing hurt to PW.1-Thimmanna, S/o Odo Thimmappa, PW.3- Eranna, PW.5-Gangamma, PW.7-Eramma, PW.9- Thimmappa, S/o Nagappa and PW.4-Krishnappa. The 9 accused were also tried for offences punishable under Sections 147 and 148 IPC.
8. It is brought on record that some of the accused had filed first information in Crime No.328/2003 for offences punishable under Sections 143, 147, 148, 504, 506, 114 r/w 149 IPC. Some of the witnesses herein were tried in S.C.No.86/2005 (counter case). The State has not challenged the impugned judgment as it relates to acquittal of the accused as aforestated.
9. In view of the conviction of appellants for aforestated offences and death of accused no.1 and 2 during pendency of appeal, following points would arise for determination:
(1) Whether prosecution has proved that on 01.07.2003 at about 8 a.m., in Hireguntanur Gollarahatty Village near Anganawadi School, accused 3 & 5 shared common intention and in furtherance of such common intention, they assaulted Siddappa (since deceased) with a chopper, clubs and stones with such intention and knowledge that such injuries are likely 10 to cause death of deceased and thereby committed an offence punishable under section 304 II r/w 34 IPC?
(2) Whether the prosecution has proved in the course of same transaction, accused 6, 12, 14, 15 to 17, 21 to 24 and 26 being members of unlawful assembly, in furtherance of common object of such unlawful assembly, assaulted PW2-Thimmanna and PW23-
Rajanna with deadly weapons and caused grievous injuries to PW2-Thimmanna and PW23-Rajanna, thereby committed an offence punishable under section 326 r/w 149 IPC?
(3) Whether prosecution has proved that in the course of same transaction, accused 2, 6, 9, 12, 14 to 17, 21 to 24, 30 & 31 had voluntarily caused hurt to PW1- Thimmanna, PW3-Eranna, PW5-Gangamma & PW7- Eramma, PW9-M.N.Thimmappa S/o.Nagappa, PW4- Krishnappa and thereby committed an offence punishable under section 324 r/w 149 IPC? (4) Whether prosecution has proved that accused no.3, 5, 6, 9, 12, 14 to 17, 21 to 24, 30 & 31 had formed into unlawful assembly with the common object of assaulting deceased Siddappa and PW.2-Thimmanna had voluntarily caused injury to PW1-Thimmanna, PW3-Eranna, PW5-Gangamma, PW7-Eramma, PW9- 11 M.N.Thimmappa S/o.Nagappa and PW4-Krishnappa and in the course of same transaction, they wielded deadly weapons and committed rioting, thereby committed offences punishable under Sections 143, 147 and 148 IPC ?
10. In a decision reported in Masalti -v- State of Uttar Pradesh (AIR 1965 SC 202) the Supreme Court has held:
"(e) Evidence - Appreciation - Criminal trial
-Some members of unlawful assembly assaulting with weapons, including guns -
Death of some victims - Duty of Court in appreciating evidence - Penal Code (1860), S.302/149 Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crown of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. Where for instance, several weapons were carried by 12 different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not."
(f) Evidence Act (1872), S.134- Number of witnesses.
It is true that under the Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. But where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only 13 if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical, but it cannot be treated as irrational or unreasonable. It is, no doubt, the quality of the evidence that matters and not the number of witnesses who give evidence. But sometimes it is useful to adopt a mechanical test. (para 16)"
11. In a decision reported in AIR 1956 SC 116 (in the case of Willie (William) Slaney Vs. State of Madhya Pradesh), the Supreme Court has held:-
"(d) Penal Code (1860), Ss.34 and 149 -
Scope and applicability. There is much difference in the scope and applicability of Ss.
34 and 149, though they have some
resemblance and are to some extent
overlapping. Section 34 does not by itself create any offence, whereas S. 149 does. In a charge under S.34, there is active participation in the commission of the criminal act; under S.149, the liability arises by reason of the membership of the unlawful assembly with a common object, and there may be no active participation at all in the perpetration or commission of the crime." 14
12. In the case on hand, there were as many as 32 accused. As per the case of prosecution, the incident of assault resulted in death of Siddappa, grievous injuries to PW2 and PW23 and simple injuries to PW1, PW3, PW5, PW7, PW9, PW14. There was preexisting enmity between accused and some of the prosecution witnesses. Thus, it is necessary to carefully scrutinize the evidence of prosecution witnesses. In the first information, the names of accused 3 & 5 and overt acts attributed to them have been stated by PW1. PW1 had been injured in the incident of assault. Therefore, presence of PW1 near the place of incident cannot be suspected.
13. PW1-Thimmanna is the younger brother of deceased Siddappa. PW1 has deposed about dispute between parties in relation to collection of water from Village Panchayat water tank constructed near the house of accused No.1. PW1 has deposed; other villagers had given complaint to Chief Executive Officer of Chitradurga Taluk Panchayat (for short, 'CEO'), regarding high handed acts of accused No.1, not allowing other villagers to collect water from public water tank.
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14. The evidence of prosecution witnesses that CEO had visited the place of incident at about 7.30 a.m. on 01.07.2003 has not been controverted. PW1 has deposed; Shivalingappa (accused No.1) and his associates were enraged by complaint given by PW1; Shivalingappa (accused No.1), Mallikarjuna (accused No.5) and Thimmappa (accused No.3) were holding choppers and they assaulted deceased and caused fatal injuries to him.
During cross-examination of PW1, it has been suggested to him that there was longstanding enmity between PW1 and accused No.1. PW1 has deposed; there was dispute between PW1 and other villagers on one side and accused on the other side in relation to distribution of water supplied from tank constructed by Village Panchayat. PW1 has deposed that accused No.5 assaulted on left lower limb of deceased with a chopper. PW1 has deposed; accused No.3 assaulted on left lower limb of deceased with handle of an axe.
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Though PW1 has been subjected to lengthy cross- examination, nothing has been elicited to discredit this part of his evidence.
15. PW2-Thimmanna was injured in the incident of assault. As per medical evidence, PW2 had suffered grievous injuries. The presence of PW2 near the place of incident cannot be suspected. PW2 has deposed about presence of CEO to enquire about distribution of water supplied from Village Panchayat tank. PW2 has deposed that accused No.1 assaulted on head and right lower limb of deceased with a chopper; accused No.3 assaulted deceased with an axe.
During cross-examination, PW2 has reiterated the events that led to incident of assault. During cross- examination of PW2, it has been suggested to him that on the same day, some of the persons belonging to faction of deceased had assaulted Shivalingappa and there was clash between two groups. It has been suggested to PW2 that he could not identify the assailants. PW2 has denied these suggestions. The evidence given by PW1 and PW2 that 17 accused Nos.3 & 5 assaulted deceased with choppers and axe cannot be suspected.
16. PW3-Eranna has not supported the case of prosecution in its entirety. PW3 has deposed about motive for the incident and also about death of Siddappa. PW3 was declared as a hostile witness. Therefore, evidence of PW3 is of no avail to the case of prosecution.
17. PW4-Krishnappa was injured in the incident of assault. PW4 has deposed; accused 1 & 2 assaulted on the head of Siddappa with a chopper.
During cross-examination, PW4 has deposed; when his statement was recorded by police, he has stated that accused 1 & 3 assaulted on head of deceased with choppers. PW4 has denied suggestion that he had not witnessed the incident of assault on deceased.
18. PW5-Gangamma is the mother of deceased Siddappa. She was injured in the incident of assault. PW5 has deposed that accused No.1 assaulted on head of 18 deceased with a chopper and accused No.5 assaulted with a club.
19. Though there are some discrepancies in the evidence of PW5 regarding assault by accused No.5 on the deceased, such discrepancies do not discredit the evidence of PW5. The other witnesses namely PW1, PW2 & PW4 have deposed that accused No.5 assaulted deceased with an axe. PW5 has deposed; accused No.5 assaulted deceased with a club. PW5 was aged more than 60 years and she is a rustic villager. It is probable that PW5 had mistaken the handle of an axe to a club.
20. PW6-A.Siddappa was injured in the incident of assault. PW6 has deposed about visit of CEO and complaint lodged against accused No.1 that he was interfering with supply of water to other villagers from Village Panchayat tank. PW6 has deposed that accused No.1 assaulted on head of deceased with a chopper; accused No.5 assaulted on left lower limb of deceased with a chopper and accused No.3 assaulted deceased with an axe.
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During cross-examination, PW6 has reiterated the events that had preceded the incident of assault. During cross-examination, PW6 has deposed that he cannot remember the names of persons who were standing by his side when incident of assault took place; incident of assault had taken place near Anganawadi building; some persons were standing away from place of incident.
Thus, evidence of PW6 that accused 1 & 5 assaulted deceased with choppers and accused No.3 assaulted deceased with an axe does not suffer from discrepancies.
21. PW7-Eramma is the elder sister of deceased Siddappa. PW7 has deposed about complaint lodged against accused No.1 in relation to distribution of water from Village Panchayat tank; after CEO left the place; accused No.1 brought a chopper; accused No.3 was armed with an axe; accused No.1 assaulted on head of deceased with a chopper; accused No.5 assaulted on left lower limb of deceased with an axe; accused No.3 assaulted on left lower limb of 20 deceased with handle of an axe; deceased was shifted to District Hospital at Chitradurga in a police jeep.
During cross-examination; PW7 has deposed that deceased had suffered bleeding injuries and his clothes were stained with blood.
22. Apart from this, nothing has been suggested to discredit evidence of PW7. Above all, PW7 being the elder sister of deceased Siddappa would be least disposed to falsely implicate accused 1, 3 & 5, leaving aside the real assailants.
23. The evidence of aforestated witnesses finds corroboration from the evidence of PW8-Suresh, PW9- N.M.Thimmappa, PW10-Honnura Thimmappa, PW11- Venkatesh and PW23-Rajanna. After the incident of assault, deceased was shifted to District Hospital at Chitradurga in a police jeep. Siddappa succumbed to injuries when he was being shifted to District Hospital at Chitradurga. The post- mortem examination on deadbody of deceased Siddappa was conducted by PW14-Dr.G.K.Jayashri.
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24. PW14-Dr.G.K.Jayashri has deposed; on 02.07.2003 at about 10.20 a.m., she was instructed to conduct post-mortem examination of dead body of Siddappa.
25. From the contents of post-mortem examination report marked as Ex.P.5, we find that deceased had suffered multiple injuries which were abrasions and incise wounds. The deceased had suffered fracture of occipital bone and death was due to subarachnoid haemorrhage and hypovolemic shock as a result of head injury and other injuries sustained.
26. The medical evidence of PW14 and the contents of post-mortem examination report in proof of injuries suffered by deceased and also cause of death have not been controverted by defence. Therefore, it can safely be held that death of Siddappa was homicidal and death was due to subarachnoid haemorrhage and hypovolemic shock as a result of multiple injuries. From the evidence of aforestated injured/eyewitnesses, the prosecution has proved that accused 3 & 5 had assaulted deceased with a chopper 22 and axe with such intention and knowledge that such injuries are likely to cause death. The learned trial Judge having regard to the fact that counter case had arisen out of the same incident has held accused 3 & 5 guilty of an offence punishable under section 304 II r/w 34 IPC and sentenced them to undergo rigorous imprisonment for five years and pay fine of Rs.2,000/- each, in default to undergo rigorous imprisonment for three months. There are no reasons to interfere with the conviction of accused 3 & 5 and sentence imposed thereon. Point no.1 is answered accordingly.
27. As per medical evidence, PW2-Thimmanna and PW23-Rajanna had suffered grievous injuries. PW2- Thimmanna (injured witness) has deposed the reasons for incident of assault that took place at 8 a.m. on 01.07.2003 near Anganawadi School in Hireguntanur Gollarahatty Village. PW2 has deposed; accused 3 & 5 had assaulted deceased with a chopper and an axe; other accused had assaulted some of the prosecution witnesses; PW2 went to rescue Rajappa (PW23), at that time, accused Nos.12, 22 to 23 24 & 26 assaulted on his right lower limb with clubs; accused No.21 assaulted on his right lower limb with a chopper; bones of right lower limb of PW2 were broken; therefore, PW2 fell down and became unconscious; PW2 regained consciousness after he was admitted in District Hospital at Chitradurga.
28. PW15-Dr.Basavaraja had treated PW2 in District Hospital at Chitradurga. PW15 has deposed; PW2 had suffered following injuries:-
I. A contusion measuring 4 cms x 4 cms on right arm II. Pain and tenderness over upper part of left fore arm III. Pain, tenderness and swelling on upper 1/3rd of right lower limb IV. An abrasion measuring 2 cms x 2 cms below left knee joint X-rays taken revealed fractures of both bones of upper 1/3rd of right lower limb. PW15 has opined that injury No.3 i.e., fractures of both bones of right lower limb were grievous in nature.24
29. PW2 has deposed that accused 12, 22 to 24 & 26 had assaulted him with clubs and accused no.21 assaulted with a chopper and caused aforestated injuries.
30. As per the case of prosecution, there was crowd of assailants and large number of injured/victims. In the circumstances, it would not be prudent to expect PW2 to give minute details of assault. PW2 being injured witness would be least disposed to falsely implicate accused.
Therefore, evidence of PW2 that accused no.12, 22, 23, 24 and 26 assaulted him with clubs and accused no.21 assaulted on his right lower limb with a chopper cannot be suspected.
31. PW23-Rajanna had also suffered grievous injuries in the incident of assault. The medical evidence of PW15 and the contents of Ex.P.10 would reveal that PW23 had suffered following injuries:-
I. A cut injury measuring 1 cm x 1 cm on scalp II. A punctured wound measuring 2 cms x 2 cms on right lower limb 25 III. An abrasion measuring 1/2 cm x 1/2 cm on right medial malleolus IV. Pain and tenderness over right lower limb X-rays taken revealed fractures of right femur and right tibia and fibula.
32. PW.23 is the elder brother of deceased. PW23 has deposed that when he questioned accused 1, 3 & 5 as to why they were assaulting Siddappa; accused 15 to 17 assaulted PW23 with clubs and they broke the bones of thigh and PW23 fell unconscious.
During cross-examination, PW23 has deposed that he was treated for a period of 3 months and 10 days in C.G.Hospital at Davanagere. During cross-examination of PW23, his evidence that he was assaulted by accused 15 to 17 and he suffered grievous injuries including fractures of right femur and right tibia and fibula has not been controverted. Therefore, the finding of learned trial Judge that accused 12, 15 to 17, 21 to 24 & 26 had caused grievous injuries to PW2 and PW23 and committed an 26 offence punishable under section 326 r/w 149 IPC does not call for interference.
The learned Sessions Judge has held accused no.6 and 14 guilty of an offence punishable under section 326 r/w 149 IPC.
The injured witnesses namely PW2-Thimmanna and PW23-Rajanna have not deposed that Accused no.6 and 14 had assaulted them. They have not deposed that accused no.6 and 14 were present when accused no.12, 15 to 17, 21 to 24 and 26 assaulted them. The eyewitnesses have not deposed that accused no.6 and 16 had assaulted PW2 and PW23. Therefore, accused no.6 and 14 cannot be held guilty of an offence punishable under section 326 r/w 149 IPC.
In view of the above discussion, I hold accused 12, 15 to 17, 21 to 24 and 26 guilty of an offence punishable under section 326 r/w 149 IPC. Point no.2 is answered accordingly.
The prosecution has produced wound certificates marked as Ex.P6 to Ex.P.13 and examined PW15- Dr.Basavarajappa to prove PW2-Thimmanna, S/o Kadurappa. PW5-Gangamma, PW1-Thimmanna, S/o Odo 27 Thimmappa, PW3-Eranna, PW4-Krishnappa, PW7-Eramma, PW23-Rajamma, had suffered grievous and simple injuries. While answering point no.2, I have held that accused no.12, 15 to 17, 21 to 24 and 26 had assaulted PW2 and PW23 with deadly weapons and caused grievous injuries to them. Therefore, it is necessary to consider evidence of the other injured namely PW1-Thimmanna, PW3-Eranna, PW4- Krishnappa, PW5-Gangamma, PW6-Siddappa and PW7- Eramma.
33. PW3-Eranna is stated to be injured witness. PW3 has not supported the case of prosecution. PW3 has deposed that a stone was pelted at him. PW3 was treated as a hostile witness. Therefore, it is not necessary to consider the wound certificate and medical evidence relating to injuries suffered by PW3.
34. PW4-Krishnappa has deposed; when he went to rescue deceased Siddappa, accused no.30-Govindappa and accused no.31-Venkatesh assaulted him with clubs and PW.4 suffered injuries. PW4 has admitted that when his 28 statement was recorded under Section 161 Cr.P.C., he has stated that accused no.31-Venkatesh assaulted him with a stone. The contents of wound certificate marked as Ex.P47 would reveal that he had suffered contusion on lateral aspect of right knee and tenderness over left shoulder. The evidence of PW.4 does not find corroboration from evidence of other prosecution witnesses. In view of discrepant evidence given by PW.4, it is not possible to hold that prosecution has proved that PW.4 was assaulted by accused no.30-Govindappa and accused no.31-Venkatesh.
35. PW.5-Gangamma is the mother of deceased Siddappa. PW5 was injured in the incident of assault. PW5 has deposed that she had intervened to save her son when he was being assaulted by accused no.1-Shivalingappa (since deceased) and accused no.5-Mallikarjuna. She has not deposed that she was assaulted by the accused yet, the prosecution has produced the wound certificate marked as Ex.P7. PW5 has not deposed that she was assaulted by the accused, therefore, no reliance can be placed on the wound 29 certificate and medical evidence. Therefore, I hold that PW.5-Gangamma was not assaulted in the incident.
36. PW.7-Eramma has deposed; that she is the elder sister of deceased Siddappa. She has deposed about the events that had occurred before the incident of assault. She has deposed about the incident of assault on her younger brother Siddappa by accused no.1-Shivalingappa (since deceased) accused no.3-Thimmappa and accused no.5- Mallikarjuna.
PW.7 has not deposed that she had suffered injuries in the incident of assault yet, the prosecution has produced wound certificate marked as Ex.P9. Therefore, reliance cannot be placed on contents of wound certificate (Ex.P9) and medical evidence.
37. PW.9-Thimmappa has deposed about visit of CEO of Taluk Panchayat, Chitradurga to resolve water distribution problem. PW9 has deposed, after CEO left the place, there was quarrel and the accused had assaulted some of the prosecution witnesses; accused no.1- 30 Shivalingappa (since deceased), accused no.5-Mallikarjuna, accused no.3-Thimmanna assaulted the deceased with choppers and axe. PW.9 has not deposed that he was assaulted and he had suffered injuries. The prosecution has not produced the wound certificate. Therefore, it is not possible to hold that PW.9 was assaulted by the accused in the incident of assault.
38. PW.1-Thimmanna, S/o Odo Thimmappa is the younger brother of deceased Siddappa. PW1 has deposed about the events that had led to the incident of assault. PW1 has deposed; after the CEO left the village, accused no.1 and others armed with deadly weapons came and assaulted deceased Siddappa. He has deposed that Shivalingappa (since deceased), accused no.5-Mallikarjuna, accused no.3-Thimmanna assaulted the deceased Siddappa with an axe. PW.1 has deposed that accused no.22- Bhangyeppa assaulted on his head and right shoulder with a club. The wound certificate marked as Ex.P12 reveals that PW.1 was examined in District Hospital at Chitradurga. He had suffered following injuries:
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1) Cut injury measuring 1 cms x 4 cms over right forehead
2) Tenderness over left upper arm
3) Tenderness over left leg
39. In the first information, PW.1 has not stated that accused no.22-Bhangyappa assaulted him with a club. If accused no.22-Bhangyappa had assaulted PW.1 with a club, he would not have omitted the name of assailant. In the first information, he has made an omnibus statement that he was assaulted by the accused with clubs and stones without specifying their names. Therefore, evidence of PW.1 is not sufficient to hold that he was assaulted by accused no.22- Bhangyappa. In view of above discussion, I hold that prosecution has failed to prove that accused no.2, 6, 9, 12, 21 to 24, 30 and 31 had voluntarily caused hurt to PW.1- Thimmanna, PW.3-Eranna, PW.5-Gangamma, PW.7- Eramma, PW.9-Thimmappa and PW.4-Krishnappa.
The learned Sessions Judge has formulated point no.4 reading as here under :
32
"Whether the prosecution proves beyond reasonable doubt that on the aforesaid date, time and place, accused being members of unlawful assembly, the common object of which was to assault CW1 and his followers, A-1 was possessing Machhu, A-2, A-4, A-8, A-14 holding clubs, A-3, A-5, A-6 and A-7 were possessing clubs and handle of axe and assaulted CW2, 3 and others and caused simple injuries to them so as to attract the ingredients of Section 324 r/w 149 IPC?"
The learned Sessions Judge without adverting to evidence of alleged injured witnesses has held accused no.2, 6, 9, 12, 14 to 17, 21 to 24, 30, 31 guilty of an offence punishable under section 324 r/w 149 IPC. Therefore, finding recorded by the learned Sessions Judge on point no.4 cannot be sustained.
40. In the case on hand, as many as 32 accused were tried. The incident of assault resulted in death of one Siddappa and grievous injuries to PW.2-Thimmanna and PW.23-Rajanna. Therefore, it is necessary to find out if there 33 is consistent and credible evidence of two witnesses to fasten vicarious liability under Section 149 IPC.
41. The learned Sessions Judge has held A1, A2, A3, A5, A6, A9, A12, A14 to A17, A21 to A24, A26, A30 and A32 guilty of offences punishable under sections 143, 147 and 148 IPC. The evidence adduced by the prosecution in relation to this point has to be considered in the background of events that had preceded the incident of assault. Accused no.1 (since deceased) was the President of Mandal Panchayat of Hireguntanur Gollarahatty. The village panchayat had constructed two water tanks in Gollarahatty village. One tank was constructed near the house of accused no.1 and another tank was constructed in the village. Accused no.1 was not allowing other villagers to use the water from the water tank constructed near his house. Therefore, deceased Siddappa and others had lodged complaint to the Chief Executive Officer of Taluk Panchayat, Chitradurga. On 01.07.2003, at about 7.45 a.m., CEO and other officials had visited Gollarahatty village and came to know the highhanded acts committed by accused no.1 and 34 warned accused no.1 to leave water to be used by other villagers. Soon after the CEO left Gollarahatty village, at about 8.00 a.m., the incident of assault took place resulting in death of Siddappa and grievous injuries to PW.2- Thimmanna and PW.23-Rajanna.
42. On the first information lodged by some of the accused, Crime No.328/2003 was registered for offences punishable under Sections 143, 147, 148, 504, 506, 114 r/w 149 IPC and S.C.No.86/2005 was tried as a counter case to this case. There was pre-existing enmity between the parties.
While answering point no.1, I have held that there is consistent and cogent evidence that accused no.3 and 5 had assaulted deceased Siddappa with a chopper and caused his death, thereby committed an offence punishable under section 304 Part-II r/w 34 IPC.
While answering point no.2, I have held that in the course of same transaction, accused no.12, A15 to 17, A21 to A24 and A26 being the members of unlawful assembly and in furtherance of common object of unlawful assembly caused grievous hurt to PW.2-Thimmanna and PW.23- 35 Rajanna, thereby committed an offence punishable under Section 326 r/w 149 IPC.
While answering point no.3, I have held that the prosecution has failed to prove that accused no.6, 9, 12, 14 to 17, 21 to 24, 30 and 31 had voluntarily caused hurt to PW1-Thimmanna, PW3-Eranna, PW5-Gangamma, PW7- Eramma, PW9-M.N.Thimmappa S/o Nagappa and PW4- Krishnappa by dangerous weapons. Therefore, accused no.6, 9, 12, 14 to 17, 21 to 24, 30 and 31 cannot be held guilty of an offence punishable under Section 324 r/w 149 IPC.
In view of aforestated findings, accused 3 and 5, 12, 15 to 17, 21 to 24 and 26 against whom the prosecution has proved specific overt acts are held guilty of offences punishable under sections 143, 147, 148 IPC. The learned Sessions Judge has held A1, A2, A3, A5, A6, A9, A12 to A17, A21 to A24, A26, A30 and A31 guilty of offences punishable under sections 143, 147 and 148 IPC. This finding is modified. A3, A5, A12, A15 to A17, A21 to A24 and A26 are held of guilty of offences punishable under sections 143, 147 36 and 148 IPC. A6, A9, A14, A30 and A31 are acquitted of offences punishable under sections 143, 147 and 148 IPC.
In view of the above discussion, the impugned judgment requires modification.
43. Therefore, I pass the following:
ORDER The impugned judgment as it relates to conviction of accused no.3 and 5 for an offence punishable under Section 304 Part-II r/w 34 IPC and sentence imposed thereon is confirmed.
The conviction of accused no.12, 15 to 17, 21 to 24 and 26 for an offence punishable under Section 326 r/w 34 IPC and sentence imposed thereon is confirmed.
Accused no.6, 9, 12, 14 to 17, 21 to 24, 30 and 31 are acquitted of an offence punishable under Section 324 r/w 149 IPC.
The conviction of A3, A5, A12, A15 to A17, A21 to A24 and A26 for offences punishable under sections 143, 147 and 148 IPC and sentence imposed thereon are confirmed. 37
Accused no.6, 9, 14, 30 and 31 are acquitted of offences punishable under sections 143, 147 and 148 IPC.
Accused no.6 and 14 are acquitted of an offence punishable under section 326 r/w 149 IPC.
The rest of the impugned judgment is confirmed.
Sd/-
JUDGE SNN/Np