Karnataka High Court
The State By Kushnoor Police Station vs Keshav S/O Ganpathi Chown Lambada Ors on 4 July, 2012
Bench: K.Sreedhar Rao, B.S.Indrakala
1
IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT
GULBARGA
DATED THIS THE 04TH DAY OF JULY 2012
PRESENT
THE HON'BLE MR. JUSTICE K.SREEDHAR RAO
AND
THE HON'BLE MRS. JUSTICE B.S.INDRAKALA
CRIMINAL APPEAL NO.3762/2010
BETWEEN
THE STATE BY KUSHNOOR POLICE STATION
REPRESENTED BY ADDL.STATE PUBLIC
PROSECUTOR, OFFICE OF THE
ADVOCATE GENERAL
GULBARGA. ... APPELLANT
(BY SRI SUBHASH MALLAPUR, HCGP)
AND
1. KESHAV S/O GANPATHI CHOWN LAMBADA ORS
AGED ABOUT 52 YEARS
R/O MAHADONGAUM JITMAL NAYAK TANDA
2. JAMUNABAI W/O KESHAV CHOWN LAMBADA
AGED ABOUT 47 YEARS
R/O MAHADONGAUM JITMAL NAYAK TANDA
2
3. NAGNATH S/O KESHAV LAMBADA
AGED ABOUT 32 YEARS
R/O MAHADONGAUM JITMAL NAYAK TANDA
4. RAMSINGH S/O NAMDEV RATHOD LAMABADA
AGED ABOUT 77 YEARS
R/O MAHADONGAUM JITMAL NAYAK TANDA
5. BABU S/O RAMSINGH LAMBADA
AGED ABOUT 45 YEARS
R/O MAHADONGAUM JITMAL NAYAK TANDA
6. KESHALABAL W/O RAMSINGH RATHOD LAMBADA
AGED ABOUT 72 YEARS
R/O MAHADONGAUM JITMAL NAYAK TANDA
7. LAXMAN S/O KESHAV CHOWN
AGED ABOUT 32 YEARS
R/O MAHADONGAUM JITMAL NAYAK TANDA
8. TULSIRAM S/O SHANKER LAMBADA
AGED ABOUT 33 YEARS
R/O MAHADONGAUM JITMAL NAYAK TANDA
... RESPONDENTS
(BY SRI SHIVAKUMAR KALLOOR ADV. FOR R.1 TO R.3 & R.5
TO R.8 V/O DATED 19/7/11 R.4 IS ABATED)
THIS CRL.A. FILED U/S. 378 (1) & (3) OF CR.P.C BY THE
ADVOCATE FOR APPELLANT / THE ADDL. SPP FOR THE STATE
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO,
GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGEMENT
AND ORDER OF ACQUITTAL DATED 16.07.2010 PASSED IN
SESSIONS CASE NO.73/2004 ON THE FILE OF THE ADDL. DIST.
AND SESSIONS JUDGE AT BIDAR, ACQUITTING THE ACCUSED /
3
RESPONDENTS FOR THE OFFENCES P/U/S. 143, 147, 148, 448,
447, 506 AND 302 R/W SEC. 149 OF IPC.
This appeal is coming on for final hearing, this day,
K.SREEDHAR RAO J, delivered the following:-
JUDGEMENT
The material facts of the prosecution case disclose that the Respondents No.1 to 8 are the Accused No.1 to 8. Accused No.2 is the wife of Accused No.1. Accused No.3 and 7 are the sons of Accused No.1. Accused No. 4 and 6 are the father-in-law and mother-in-law of Accused No.1. Accused No.5 is brother-in-law of Accused No. 1. Accused No. 8 is the son-in-law of Accused No.1. Accused No.4 died during the pendency of the trial. Therefore, case against Accused No.4 abates.
2. There was a land dispute between one Babu who is the deceased and his family members on part and the accused on the other part. On 15.06.2003 at 04.00 p.m. there was a quarrel between deceased and Accused No.1. Thereafter Accused No.1 along with Accused No.2 to 8 armed with deadly weapons came to the house of deceased. Deceased was dragged. Accused No.1 4 assaulted deceased with stick on the back. Accused No.2 squeezed the testicles. Accused No. 4 and Accused No. 6 assaulted deceased with stones. Other Accused with bare hand assaulted the deceased. Deceased fell down. PW 1 is the son of the deceased. PW 2 is the wife of the deceased. PW 10 and PW 13 are the brothers of the deceased. They were present and they tried to rescue yet assault. Assault took place resulting in instantaneous death of deceased at the spot after the assault.
3. Complaint is lodged on the same day at 09.15 p.m. by PW 1. The inquest is conducted. Post mortem discloses that death is due to injury to heart. Accused who are charged for the offences u/Ss. 143, 147, 148, 447, 506, 302 r/w 149 of IPC. The effective charge should be under 148, 447 and 302 r/w 149 of IPC.
4. PW 1, PW 2 and PW 13 who are witnesses to the incident have given evidence in support of the prosecution case and they speak to the incident and assault made by the Accused persons on the deceased. PW 10 has turned hostile. The medical evidence disclose that death is due to injury to heart. The Trial court has found that the external injury is simple in nature. In the 5 evidence it is stated that on the left side of the chest assault with stone. On the right side of the chest there was no visible injury. 4th rib on the left side was fractured. The Trial court finds that the manner of assault stated by the witnesses in the evidence does not correspond to the nature of injury seen on the dead body. PW 13 says that dead body was in front of the house. PW 10 who has turned hostile has stated that body was on the veranda of the house. PW 1 and PW 2 also state that the body was in front of the house and the house situate in the land. The Trial court finds that there is discrepancy with regard to scene of offence and place where the dead body was found. The Trial court finds that Record of Right does not disclose the possession of the land with the deceased. Therefore, holds that the motive stated is not substantiated. The witnesses who have supported the case are relatives of deceased and not independent witnesses. Hence acquitted the accused.
5. On thorough consideration of the evidence it is to be seen that Trial judge has hopelessly erred in appreciating the evidence in a proper perspective. Evidence of PW 1, PW 2 and PW 13 would clearly establish the occurrence of the incident of assault 6 on the deceased by the Accused persons. The medical evidence disclose death is due to injury to heart. It is in the medical evidence that injuries caused namely fracture of rib could be caused by fall also. The doctor evidence is only opinion evidence. The evidence of PW 1 disclose that Accused persons assaulted and deceased as he fell down. It could be that fracture injury on account of fall also. There is no definite evidence to show fracture to rib and consequent injury to heart was as a result of assault or as a result of fall on the ground. If the Accused were come and assault it need not be infer always be inferred that they had intention to cause murder. If really the Accused had intention to cause murder they might have caused more severe visible injury. Probability that deceased falling down suffering fracture of rib and consequent death appears to be more probable. The Accused persons in that view can only be liable for conviction u/Ss. 148, 447, 324 r/w 149 of IPC. Accused persons would not be liable for conviction u/s 302 of IPC and acquittal of accused persons U/s. 302 of IPC is sound and proper. Accused persons are in custody for three months during trial. The said detention is imposed as 7 sentence and Accused persons are deemed to have served sentence.
Accordingly the appeal is disposed of.
Sd/-
JUDGE Sd/-
JUDGE *MK