Karnataka High Court
Sri. Basappa Venkappa Pujari, vs The State Of Karnataka, on 12 March, 2013
Author: H S Kempanna
Bench: H S Kempanna
-1-
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 12TH DAY OF MARCH 2013
PRESENT
THE HON'BLE MR.JUSTICE B.V.PINTO
AND
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
CRIMINAL APPEAL NO.2502/2011
C/W. CRIMINAL APPEAL NO.2509/2011,
CRIMINAL APPEAL NO. 2510/2011,
CRIMINAL APPEAL NO.2783/2011,
CRIMINAL APPEAL NO.2561/2012
& CRIMINAL APPEAL NO.2771/2010
IN CRL.A. NO.2502/2011:
Between
1. Sri. Basappa Venkappa Pujari,
S/o. Venkappa Pujari
Age: 40 years,
2. Sri.Shivanigappa Avanna Patil,
S/o. Avanna Patil
Age: 35 years,
3. Sri. Gopal Venkappa Pujari,
S/o. Venkappa Pujari.
Age: Major.
All are resident of
Ajjanakatti Village
Gokak Taluk
Belgaum District. ... Appellants
(By Sri.Ravi B. Naik, Senior Counsel)
-2-
And
The State Of Karnataka,
Represented by its
State Public Prosecutor,
Advocate General's Office,
High Court Building,
Bangalore - 560 001. ... Respondent
(By Sri. V.M.Banakar, Addl.S.P.P.)
This criminal appeal is filed under Section 374(2)
Cr.P.C. Seeking to set aside the order passed by the Fast
Track and Addl. Sessions Court, Hukkeri, sitting at Gokak,
vide order dated 12.08.2010 passed in S.C.No.73/2008 and
convicting the appellant under Sections 143, 148, 452, 342,
324, 326, 302 read with Section 149 of IPC.
IN CRL.A. NO.2509/2011:
Between
The State of Karnataka,
Through CPI, Gokak Circle,
Gokak, Tq. Gokak,
Through Addl. S.P.P.,
High Court Circuit Bench,
Dharwad. ... Appellant
(By Sri.V.M.Banakar, Addl. S.P.P.)
And
Siddappa Venkappa Pujari,
Age: 32 Years,
R/o. Ajjankatti,
Tq. Gokak, Dist. Belgaum ... Respondent
(By Sri.R.G. Patil, Advocate)
-3-
This criminal appeal is filed under Sections 378(1) & (3)
of Cr.P.C. Seeking to grant leave to appeal and set aside the
judgement and order of acquittal dated 12.08.2010 against
accused No.6 passed in S.C.No.73/2008 on the file of the
Fast Track Court & Sessions Judge, Hukkeri, sitting at Gokak
and convict and sentence the accused/respondent No.6 for
the offences with which they have been charged in
accordance which they have been charges in accordance with
law.
IN CRL.A. NO 2510/2011:
Between
The State of Karnataka,
Through CPI, Gokak Circle,
Gokak, Tq. Gokak,
Through Addl. S.P.P.,
High Court Circuit Bench,
Dharwad. ... Appellant
(By Sri.V.M.Banakar, Addl. S.P.P.)
And
Beerappa Rangappa Pujari,
Age: 40 Years,
R/o. Ajjanakatti, Tq. Gokak ... Respondent
(By Sri.Santosh B.Mane, Advocate)
This criminal appeal is filed under Sections 378(1) & (3)
of Cr.P.C. Seeking to grant leave to appeal and set aside the
judgement and order of acquittal dated 12.08.2010 against
accused Nos.8 to 10 passed in S.C.No.73/2008 on the file of
the Fast Track Court & Additional Sessions Judge Hukkeri,
sitting at Gokak thereby acquitting the accused/respondent
for the offences punishable under Sections 143, 147, 148,
-4-
504, 452, 342, 324, 326 and 302 read with Section 149 of IPC
and convict and sentence the accused/respondent No.7 for
the offences with which they have been charged in
accordance with law.
IN CRL.A. NO 2783/2011:
Between
The State Of Karnataka,
Through CPI Gokak Circle,
Gokak, Tal.: Gokak. ... Appellant
(By Sri.V.M.Banakar, Addl. S.P.P.)
And
1. Shankrappa Rangappa Pujeri,
Age: 38 Years,
2. Shivalingappa Rangappa Pujari,
Age: 22 Years,
3. Rukmawwa W/o.Siddappa Patil,
Age: 57 Years,
All are R/o. Ajjanakatti,
Tq. Gokak. ... Respondents
(By Sri.Ram P. Ghorpade, Advocate)
This criminal appeal is filed under Sections 378(1) & (3)
of Cr.P.C. Seeking to grant leave to appeal against the
judgement and set aside the order of acquittal dated
12.08.2010 passed in S.C.No.73/2008 on the file of the Fast
Track Court & Addl. Sessions Judge, Hukkeri, sitting at
Gokak, hereby acquitting the accused/respondents for the
offences punishable under Sections 143, 147, 148, 504, 452,
-5-
342, 109, 324, 326 & 302 read with Section 149 of IPC and
convict & sentence the accused/respondents Nos.8 to 10.
IN CRL.A. NO 2561/2012:
Between
1. Siddappa S/o. Rangappa Pujari
Age : 31 years,
2. Rangappa S/o. Siddappa Pujari
Age: 43 years,
Both are R/o.: Ajjan Kati, Tq: Gokak
... Appellants
(By Sri.B.S.Ghodse, Advocate)
And
The State of Karnataka,
Through C.P.I. Gokak Circle,
Gokak Tq: Gokak,
Rep. by S.P.P.
... Respondent
(By Sri.V.M.Banakar, Addl. S.P.P.)
This criminal appeal is filed under Section 374(2) of
Cr.P.C. Seeking to set aside the judgement and order dated
12.08.2010 passed by the Fast Track & Addl. Sessions Court,
Hukkeri, sitting at Gokak, in S.C.No.73/2008 and the
appellants be acquitted of the alleged offences punishable
under sections 143, 148, 452, 342, 324, 326, 302 read with
Section 149 of IPC.
-6-
IN CRL.A. NO 2771/2010:
Between
Shri Siddappa Venkappa Pujeri,
Age 32 years, Occ.: Agriculture,
R/o. Ajjankatti, Tq. Gokak,
Dist.: Belgaum.
.. Appellant
(By Sri.R.G.Patil, Advocate)
And
The State of Karnataka,
By C.P.I. Gokak Circle, Gokak,
Rep. by the State Public Prosecutor,
High Court Building, Dharwad.
... Respondent
(By Sri.V.M.Banakar, Addl. S.P.P.)
This criminal appeal is filed under Section 374 (2) of
Cr.P.C. Seeking that the impugned judgement and order of
conviction and sentence dated 12.08.2010 passed by the Fast
Track and Additional Sessions Court, Hukkeri, sitting at
Gokak, in S.C.No.73/2008 on its file be set aside and the
above named appellant (accused) be acquitted of the offences
punishable under sections 143, 148, 452, 342, 342, 326 read
with Section 149 of IPC.
These criminal appeals on coming for hearing this
day, H.S.Kempanna J., Delivered the following:
-7-
JUDGMENT
All these appeals preferred by the accused and the State are directed against the judgment and order dated 12.08.2010 passed in S.C.No.73/2008 by the Additional Sessions Judge and Presiding Officer, Fast Track Court, Hukkeri sitting at Gokak.
2. Criminal Appeal No.2502/2011, Criminal Appeal No.2771/2010 and Criminal Appeal No.2561/2012 are preferred by accused Nos.2, 4, 5, accused No. 6 and accused Nos.1 and 3 respectively, challenging the legality and correctness of the judgment and order of conviction and sentence passed on them.
Criminal Appeal No.2509/2011 has been preferred by the State challenging the legality and correctness of the judgment and order of acquittal of accused No.6 of the offences punishable under Sections 504 and 302 read with Section 149 of IPC.
-8-
Criminal Appeal Nos.2510/2011 and 2783/2011 are preferred by the State challenging the judgment and order of acquittal of the respondents-accused Nos.7 and 8 to 10 respectively.
3. The appellants-accused in Criminal Appeal Nos.2502/2011 and 2561/2012 have filed their appeals challenging the judgment and order convicting them for the offences punishable under Sections 143, 147, 148, 452, 342, 324, 326 and 302 read with Section 149 of IPC and sentencing each of them to undergo - R.I. for three months for the offence punishable under Section 143 of IPC; R.I. for two years for the offence punishable under Section 148 of IPC; R.I. for four years and to pay fine of Rs.3,000/- each in default to undergo R.I. for six months for the offence punishable under Section 452 read with Section 149 of IPC; to undergo imprisonment for six months for the offence punishable under Section 342 read with Section 149 of IPC; to undergo imprisonment for two years for the offence -9- punishable under Section 324 read with Section 149 of IPC; to undergo R.I. for six years and to pay fine of Rs.5,000/- each, in default to undergo R.I. for one year for the offence punishable under Section 326 read with Section 149 of IPC; to undergo imprisonment for life and to pay fine of Rs.50,000/- each in default to undergo R.I. for three years each for the offence punishable under Section 302 read with Section 149 of IPC.
4. Criminal Appeal No.2771/2010 has been filed by accused No.6 challenging the judgment and order, convicting him for the offences punishable under Section 143, 148 and 452 read with Section 149 of IPC; Section 342 read with Section 149 of IPC; Section 324 read with Section 149 of IPC; Section 326 read with Section 149 of IPC and sentencing him to undergo - R.I. for three months for the offence punishable under Section 143 of IPC; R.I. for two years for the offence punishable under Section 148 of IPC; R.I. for four years and to pay fine of Rs.3,000/- in default to undergo R.I. for six
- 10 -
months for the offence punishable under Section 452 read with Section 149 of IPC; to undergo imprisonment for six months for the offence punishable under Section 342 read with Section 149 of IPC; to undergo imprisonment for two years for the offence punishable under Section 324 read with Section 149 of IPC; to undergo R.I. for six years and to pay fine of Rs.5,000/-, in default to undergo R.I. for one year for the offence punishable under Section 326 read with Section 149 of IPC.
5. Criminal Appeal Nos.2510/2011 and 2783/2011 are preferred by the State challenging the judgment and order of acquittal of the accused Nos.7 and 8 to 10 respectively.
6. Criminal Appeal No.2509/2011 has been preferred by the State challenging the judgment and order of acquittal of accused No.6 of the offences punishable under Sections 504 and 302 read with Section 149 of IPC.
7. Since all these appeals arise out of the same judgment and order passed by the learned Sessions Judge,
- 11 -
they are heard together and are disposed of by this common judgment.
8. The brief facts of the case are:-
All the accused in these appeals, who have been arrayed as accused Nos.1 to 10, were tried on the charges for the offences punishable under Sections 143, 147, 148, 452 read with 149 of IPC; 504 read with 149 of IPC; 342 read with 149 of IPC; 302 read with 149 of IPC; 109 and 302 read with 149 of IPC; 324 read with 149 of IPC and 326 read with 149 of IPC. It is alleged that all these accused on 18.10.2007 at about 9:00 p.m. near the house of the deceased Rangappa @ Ranganagouda Kareppa Patil situated at Ajjanakatti village coming within the limits of Gokak Rural Police Station had formed themselves into an unlawful assembly armed with deadly weapons like axe, chopper and sickle etc., the common object of which was to commit the murder of the deceased- Ranganagouda and in furtherance of the common object of their unlawful assembly trespassed into the house of the
- 12 -
deceased-Ranganagouda assaulted him and when he tried to escape through the back door of his house wrongfully restrained him and committed his murder by assaulting him with the weapons with which they were armed and they also assaulted and caused injuries to PWs.2, 3 and 4 and further they did commit the murder of the deceased Ranganagouda at the instigation and abatement of accused Nos.7 to 10 and thereby they committed the aforementioned offences.
9. It is the case of the prosecution that the deceased Ranganagouda @ Rangappa was residing along with his wife- PW1 and his children in his house situated at Ajjanakatti village. His parents-PW4 and PW11 were residing with their youngest son by name Maruti-PW8 in a separate house in the same village. PW2 is the sister-in-law of the deceased and PW3 is the daughter of PW2 and they were residing in their house situated behind the house of the deceased along with PW12, who is the husband and the father of PW2 and PW3 respectively.
- 13 -
10. It is also the case of the prosecution that the deceased-Ranganagouda was working as a teacher in the Government Primary School situated at Mamadapur. He was going to the school and returning his place at Ajjanakatti village everyday. He was also a social worker attending to the needs of the villagers of the Ajjanakatti. As such he had become a close associate of villagers and liked by them. It is also the case of the prosecution that all the accused in the case are residents of Ajjanakatti Village, among them Accused Nos.1, 7, 8 and 9 are direct brothers and others are henchmen of accused No.1.
11. It is the case of the prosecution that about a year prior to the occurrence, accused Nos.2, 5 and 6 had financial transaction with the deceased. The deceased had demanded the amount that was due to him from them. In that connection, the said accused had assaulted him, for which he had filed a complaint against them before the Police and on account of the same there were differences between the
- 14 -
accused Nos.2, 5 and 6 on the one hand and the deceased on the other hand.
12. It is further the case of the prosecution that about eight days prior to the date of occurrence, accused No.1 had been assaulted by PW20-Chandrashekhar. Accused No.1 was under the impression, it is the deceased who had got him assaulted through PW20. On account of this, accused No.1 was nursing grudge against the deceased along with the other accused.
13. Such being the case, it is the case of the prosecution, 18.10.2007 was a holiday for the school, to which the deceased was going as a teacher. On that day, he had gone out on his personal work and returned to the house by about 8:00 p.m. At that point of time, PW2, PW3 and PW4 who are the sister-in-law, the niece and father of the deceased had come to the house of the deceased and were watching the TV in the house. The main door of the house had been closed. The deceased after he returned to the house, took his bath
- 15 -
and was performing pooja. It is at that point of time, i.e., at about 9:00 p.m. the accused came near the house of the deceased having formed themselves into an unlawful assembly armed with deadly weapons like axe, chopper and sickle etc., common object of which was to commit the murder of the deceased and in furtherance of the common object of their unlawful assembly, knocked on the door of the house of deceased. On hearing the knocking of the door, the deceased came and opened the door and at that juncture according to the prosecution, accused Nos. 1 to 6 entered the house. They caught hold of the deceased and tried to drag him out, when he resisted, the accused No.1 who was armed with an axe assaulted on his head, others assaulted him with weapons with which they were armed. After he was assaulted the deceased tried to escape through the back door of his house. He was chased by the accused, who had entered the house. In the mean time, seeing assault made on the deceased, PW1, PW2, PW3 and PW4 went to rescue of the deceased. Seeing the same, accused No.1 aimed a blow at
- 16 -
PW1. She escaped and the said blow landed on the face of the PW2 causing severe injuries on her face. Thereafter, he also assaulted PW3, the daughter of PW2 with the same axe due to which, she also sustained injury on her thigh. At that juncture, PW4, who had gone to rescue of his son was assaulted by accused No.1 on his head with axe followed by accused No.6 with the iron rod on the left hand due to which he sustained head injury and fracture of his left hand. By that time, the deceased who had gone near the back door tried to escape through the same, but the accused No.7 to 10, came near the back door and prevented him from escaping from their clutches. Despite the same, the deceased came to the backyard of his house. At that point of time, it is the case of the prosecution, accused Nos.7 to 10 instigated the accused to finish him off, in response of which, the accused assaulted him mercilessly, due to which he sustained injuries and succumbed to the same at the spot. Thereafter, the accused took to their heals with the weapons with which they were armed except accused No.6. This occurrence was also
- 17 -
witnessed by PW11, the mother of the deceased who was inside the house and PW12, the brother of the deceased, husband of PW2 and the father of PW3. (Note: Insofar as PW12 is concerned, according to the prosecution, he has seen the assault made on the deceased by the accused in the backyard) It is also the case of the prosecution that in the meantime PW13, a coolie working under PW12 also came to the backyard of the house of the deceased. At that point of time, he saw the accused taking to their heals with the weapons. It is further the case of the prosecution, thereafter PW1 shifted PWs.2 to 4 who were injured in a vehicle that came in front of the house to Gokak Rural Police Station at about 11:30 p.m. At the Police Station, the PW1 filed her first information report as per Ex.P1 before PW21-ASI. PW21 on the basis of the Ex.P1, registered a case in crime N.226/2007 for the offences under Sections 143, 147, 148, 452 read with 149 of IPC; 504 read with 149 of IPC; 342 read with 149 of IPC; 302 read with 149 of IPC; 109 and 302 read with 149 of IPC; 324 read with 149 of IPC & 326 read with 149 of IPC and
- 18 -
issued a FIR as per Ex.P27 to the Jurisdictional Magistrate, which reached him at about 5:30 a.m. on 19.10.2007.
14. Thereafter, PW21 forwarded the three injured namely PWs.2 to 4 for treatment to the Government Hospital at Gokak along with a requisition through his staff. Accordingly, it is the case of the prosecution, it was only PW3, who was treated at the said hospital by PW14, the Medical Officer at about 2:30 a.m. and issued wound certificate in respect of her as per Ex.P12. Insofar as PW2 and PW4 are concerned, they went to PW5, a private Medical Practitioner at Gokak and took treatment with him for the injuries, which they had sustained. PW5 on rendering treatment to PW2 and PW4 has issued wound certificate in respect of them as per Exs.P2 and P3 respectively. PW21 in the meantime, handed over further investigation of the case to PW23-CPI.
15. PW23 on taking over the investigation, visited the spot of occurrence at about 7:00 a.m. on 19.10.2007. There he first held inquest over the body of the deceased and drew
- 19 -
up inquest panchanama as per Ex.P6 in the presence of the panch-PW7 and others. At that time, he also got the photographs of the body taken and also recorded the statements of the blood relatives of the deceased. After completing Ex.P6, he forwarded the body for subjecting to postmortem examination along with a requisition. In pursuance of the same, PW6-Medical Officer held autopsy over the body of the deceased-Ranganagouda and issued the postmortem report as per Ex.P4.
16. PW23 after sending the body for postmortem examination, drew up the scene of occurrence panchanama as per Ex.P8 in the presence of PW7 and others. At the time of Ex.P8, he seized MO6 and also blood stained earth and unstained earth. After completing Ex.P8, he also prepared a rough sketch of the scene of occurrence as per Ex.P30. Thereafter, he seized MO15 and MO16, the clothes found on the body of the deceased under the panchanama-Ex.P18 produced by PW9-PC, who had taken the body for
- 20 -
postmortem examination. Thereafter, he visited Government Hospital at Gokak and there he recorded the statement of three injured namely PWs.2 to 4. He also seized the MO10 and MO12, the blood stained clothes of PW2 under Ex.P19, MO7 and MO8, the blood stained clothes of PW3 under Ex.P21 and MO13 and MO14, the blood stained clothes of PW4 under Ex.P20 in the presence of the pancha-PW18. He also deputed his staff to trace and apprehend the accused. Accordingly, on 23.10.2007, he arrested accused Nos.1 to 10 inside the school compound at Ajjanakatti village. On their interrogation, he recorded the voluntary statement of accused Nos.1, 2, 3, 4 and 5 as per Exs.P31, P32, P33, P34 and P35 respectively. In pursuance of the voluntary statement of accused No.1 he seized MO5 under Ex.P25; in pursuance of the voluntary statement of accused No.2, he seized MO2 under Ex.P22; in pursuance of the voluntary statement of accused No.3, he seized MO1 under Ex.P26; in pursuance of the voluntary statement of accused Nos.4 and 5, he seized MO3 and MO4 under the panchanama-Exs.P23 and P24
- 21 -
respectively. All these panchanamas were drawn up in the presence of the pancha-PW19.
17. Thereafter, on completion of the arrest formalities of the accused, he got them remanded to judicial custody. PW23, in the course of investigation, also sent a requisition to KEB authorities to furnish a certificate to the effect that, there was continuous supply of electricity to the house of the deceased at the time of occurrence and in response to the same, he received a report as per Ex.P13 from the KEB authorities reporting that, there was continuous supply of electricity on the date and at the time of occurrence, to the house of the deceased. He also sent all the seized articles in the case for subjecting to chemical examination to FSL office. Apart from the same, he also recorded the statement of all the witnesses examined on behalf of the prosecution and cited in the charge sheet. Thereafter, PW23, on obtaining all the relevant documents from the concerned authorities and as investigation had been completed, submitted final report
- 22 -
before the jurisdictional Magistrate, who in turn committed the case of the accused to the Court of Sessions, which on receipt of the records, secured the presence of the accused, framed charges against them as aforesaid, to which they pleaded not guilty, but claimed to be tried.
18. The prosecution in support of its case, in all examined PWs. 1 to 23 and got marked Exs. P1 to P38 and M.Os. 1 to 16. The accused have not got marked any defence exhibits during the course of examination of the prosecution witnesses.
19. After the closure of the prosecution evidence, the accused denied all the incriminating circumstances put to them, found in the evidence of the prosecution witnesses in their examination under Section 313 Cr.P.C. They also submitted that, they have no defence evidence to lead. Total denial of the prosecution case is the defence of the accused.
20. The learned trial Judge, on considering the oral and documentary evidence placed on record, came to the
- 23 -
conclusion that the prosecution has failed to establish all the charges leveled, insofar as accused Nos. 7 to 10 are concerned. However, he held that the prosecution has established all the charges leveled insofar as accused Nos.1 to 5 are concerned. Insofar as accused No.6 is concerned, the learned trial Judge came to the conclusion that the prosecution has established all the charges as against him, except the charge for the offences punishable under Sections 504 and 302 read with Section 149 IPC. Accordingly, by his impugned judgment, while acquitting accused Nos. 7 to 10 in toto of all the charges, convicted accused Nos. 1 to 5 and accused No.6 and sentenced them as aforesaid.
21. Accused Nos. 1 to 5 and accused No.6 being aggrieved by the judgment and order of conviction and sentence have preferred their respective appeals as aforesaid.
22. The State being aggrieved of the order of acquittal of accused Nos. 7 to 10 in toto and the acquittal of accused No.6 for the offence punishable under Sections 504 and 302
- 24 -
read with Section 149 of IPC, have preferred their appeals as aforesaid.
23. Sri. Ravi B. Naik, learned Senior Counsel appearing for the appellant/accused Nos. 2, 4 and 5, firstly contended, the evidence on record reveals, there is delay in filing of the First Information Ex.P1 by PW1. That delay, according to him, has been marked for falsely implicating the accused and also to plant the prosecution witnesses, namely PWs. 2 to 4 and 11 to 13.
In this connection he submitted, according to PW1, she filed the complaint before the police on the intervening night of 18th and 19th of October 2007 at about 12.00 midnight. In the cross-examination, she has admitted that, when she filed the complaint, it was about 4.00 am on 19.10.2007. In this connection, he also drawing the attention to the evidence of PW17 - the police constable, who had carried the First Information from the police station to the residence of the jurisdictional Magistrate, submitted, PW17 had been handed
- 25 -
over Exs.P1 - F.I. and P.27 - FIR at 1.30 am on 19.10.2007 and he delivered the same at the residence of the jurisdictional Magistrate at about 5.30 am on the very day. He submitted that, the residence of the jurisdictional Magistrate is at Gokak itself where the police station is situated. The evidence on record reveals, it requires about 20 minutes to reach the residence of the jurisdictional Magistrate by taking a walk. He also further submitted that the distance from the spot of occurrence to the police station is 16 kms. The evidence on record reveals it could be covered within 20 minutes, in view of the evidence of PW.1, which reveals that she had removed the three injured PWs. 2 to 4 in a vehicle to Gokak Rural Police Station. Having regard to the admission given by them, Ex.P1 must have come into existence only after 4.00 am on 19.10.2007 and the time gap that has taken place has been marked for falsely implicating the accused. In view of the delay in filing the First Information, the case of the prosecution projected through PWs. 1 to 4, who are the direct
- 26 -
witnesses to the occurrence, does not inspire confidence to place reliance on them.
He further contended, the motive according to the prosecution, as projected in the First Information - Ex.P1 is in respect of the financial transaction that had taken place about a year ago between the deceased on the one hand and the accused Nos.2, 5 and 6 on the other hand, in which connection, the deceased had been assaulted and a compliant had been filed. The other motive alleged is, about eight days prior to the occurrence, accused No.1 had been assaulted by PW.20 - a henchman of the deceased. Accused No.1 was under the impression that the deceased had got him assaulted through PW20 and therefore accused No.1 was nursing grudge against the deceased. The clear motive projected in the First Information is only as against accused Nos.1 and 2, 5, 6. This motive projected in the First Information has been given a complete go-by, by PW1 in her evidence before the Court. She has not testified to the motive
- 27 -
as spelt out in the First Information filed by her before the police. On the other hand, before the Court, she gives a different version regarding motive, stating that the accused were nursing grudge as he was rendering social service in the Ajjanakatte village and the accused were threatening her husband and demanding money from him, as they were addicted to alcohol. She has also stated that the accused were threatening the deceased-husband saying that, he would be made to pay the penalty. Since PW1 has given a complete go-by to the motive projected in Ex.P1, her testimony is untrustworthy. In view of the motive having been completely given a go-by, the accused having committed the murder of the deceased on account of the said motive, cannot be believed as the other motive stated to, by her in the Court is an after thought made after much water has flown under the bridge.
He further contended, the recitals in Ex.P1 coupled with the evidence before the Court does not disclose that accused
- 28 -
Nos.5 and 6 had entered into the house of the deceased. The recitals in Ex.P1 and her testimony discloses that, it is only accused Nos.1 to 4 who had entered inside the house of the deceased on opening the door. There is no whisper that accused Nos. 5 and 6 had entered the house and among them, accused No.6 had assaulted PW4 with iron rod on his left hand. According to PW1, after the assault was made inside the house, when the deceased tried to escape through the back door, he was prevented by the other accused, namely, accused Nos. 5 to 10 and thereafter, at the instigation of accused Nos. 5 and 6, the accused assaulted the deceased after he fell down. This testimony is not corroborated by the other eyewitnesses PWs. 2 to 4.
The learned trial Judge rightly, on appreciation, has come to the conclusion that accused Nos.7 to 10 have not committed any offence and their presence itself is doubtful in view of what is narrated in Ex.P1 and stated by PW1 and therefore, has rightly acquitted them. In view of the fact that
- 29 -
the said accused have been acquitted, the testimony of this PW1 also becomes doubtful vis-a-vis the overt act attributed by her as against accused Nos.1 to 4 and 5.
He vehemently submitted, the First Information - Ex.P1, evidence of PW1 does not disclose that A5 had entered the house. Apart from the same, no overt act is attributed to him vis-a-vis as against the assault either on the deceased or PWs. 2 to 4. Therefore, accused No.5 also having falsely implicated on account of the differences that existed between the family of the deceased and the accused cannot be ruled out. Hence, accused Nos. 1 to 5 should be extended the benefit of doubt. He further attacking the recovery submitted that the same can not also be believed, since the evidence of these eyewitnesses and that of PWs. 11, 12 and 13 is untrustworthy. In this connection, he submitted that, PW11, who is none other than the mother of the deceased and the wife of PW4 does not specifically say it was accused Nos.1 to 6 who had entered the house. She only says, it is accused
- 30 -
No.1 and 5 others, who had entered the house. She has not taken out the name of accused Nos. 5 and 6 specifically having entered the house. That is fortified from the evidence of PW1 and the recitals in Ex.P1. Therefore, her testimony also in the background of the occurrence and for the reasons, more particularly, delay in filing the First Information does not inspire confidence to place reliance on her testimony.
Insofar as PW12 is concerned, admittedly, he has not seen the occurrence, which has taken place inside the house. He has come to the backyard on hearing the commotion, by which time the deceased had fallen down and he claims that, at that time, he saw all the accused assaulting the deceased. The evidence on record does not disclose as to which of the accused assaulted the deceased in the backyard, except making an omnibus statement that all the accused assaulted the accused. Since the learned trial Judge has extended the benefit to accused Nos.7 to 10, the evidence of this witness
- 31 -
that he saw all the accused assaulting the deceased also becomes doubtful.
Insofar as PW13 is concerned, admittedly, he was working under PW12. He claims that, when he came to the spot, he saw the accused taking to their heels. If really he was working under PW12, he would have come along with PW12. The very fact that he claims that, when he came, he saw the accused running away from the spot would go to show that his presence in the house of PW12 at or about the time of occurrence is doubtful. Even otherwise, his testimony is only to the effect that, he saw the deceased accused taking to their heels from the spot of occurrence.
Taking from any angle, the evidence of all these witnesses does not inspire confidence to place reliance for the reason of the delay in filing the First Information before the police, nextly, Ex.P1 is silent about the role attributed to accused Nos. 5 and 6 and on account of the enmity that exists between the accused on the one hand and the deceased
- 32 -
on the other hand. Therefore, he submits that, accused Nos. 1 to 6 are also entitled to a total acquittal.
Insofar as the appeals preferred by the State is concerned, he submitted that the evidence on record is not convincing as to the act of accused Nos. 7 to 10 in preventing the deceased from going out from the back door and they instigating the other accused to assault and finish the deceased. Since the trial Judge has acquitted them on appreciation of the evidence on record, it does not suffer from any infirmity and therefore, the appeals preferred by the State be dismissed.
24. The learned Counsel appearing for accused Nos. 1 and 3 adopting the submissions made by the learned counsel for accused Nos.2, 4 and 5 also submitted that, having regard to the evidence on record, it cannot be said that, these two accused Nos. 1 and 3 had any role in the murder of the deceased inasmuch as no overt act as against the deceased has been attributed to accused No.3, except the omnibus
- 33 -
statement. Therefore, he contended, conviction of accused Nos. 1 and 3 also cannot be sustained.
25. The learned Counsel appearing for accused No.6 contended, the First Information filed by PW1 and her testimony does not reflect that accused No.6 had entered the house along with accused Nos. 1 to 4. No overt act is attributed to him inside the house as against the deceased. Admittedly, according to the prosecution, accused No.6 assaulted PW4 with an iron rod on the left hand, which has resulted in fracture to him. That iron rod has also been seized from the spot and not at his instance. Though PWs. 2 to 4 in their evidence have stated that, it was accused No.6, who assaulted PW4 in view of non-mentioning of the overt act in the First Information by PW1 and PW1 not taking out the name of accused No.6 as assailant of PW4, the testimonies of PWs. 2 to 4 cannot be believed and therefore, the conviction of accused No.6 also cannot be sustained. The same reason would hold good as against the order of acquittal of accused
- 34 -
No.6 for the offence under Section 504 and 302 IPC, as no role has been attributed as against him in assaulting the deceased.
26. All the learned Counsels also contended that, there is no evidence to show that the accused had given any provocation to the deceased and therefore, the learned trial Judge has rightly acquitted all the accused of the offences punishable under Section 504 read with Section 149 of IPC. In that view of the matter, the learned counsels submitted that, conviction and sentence recorded on the accused be set aside and they be acquitted of the charge leveled against them and the appeals preferred by the State as against the said accused Nos. 6 and 7 to 10 be dismissed.
27. Per contra, countering the submissions made by the respective Counsels, Sri. V. M. Banakar, learned Addl. SPP supporting the impugned judgment and order contended, there is no reason whatsoever to discard the evidence of PWs.1 to 4, who are the eyewitnesses to the occurrence,
- 35 -
among whom PWs. 2 to 4 are the injured eyewitnesses. He further contended that through Ex.P1 does not mention about accused Nos. 5 and 6 entering into the house, evidence of PW1 coupled with the evidence of PWs. 2 to 4 clearly reveal that, all these accused, namely, accused Nos. 1 to 6 had entered the house and in furtherance of the common object of their unlawful assembly, they had assaulted the deceased with deadly weapons and had committed his murder, apart from accused Nos.1 to 4 causing injuries to PWs. 2 & 3 and they, along with accused No. 6 causing grievous hurt to PW4. The testimony of these witnesses being injured witnesses does not suffer from any infirmity to discard the same. They being injured witnesses would not normally exculpate their assailants. Since their evidence is consistent as to the injuries sustained at the hands of the accused, the learned trial Judge, on appreciation of the entire material on record, has come to the right conclusion in holding that the accused have trespassed into the house of the accused and have assaulted the deceased and committed his murder and also
- 36 -
have caused injuries to PWs.2 to 4. However, he submitted that the learned trial Judge erred in not appreciating the evidence on record insofar as the acts attributed to accused Nos. 6 and 7 to 10. He submitted in this connection, the evidence on record reveals that these accused had formed themselves into an unlawful assembly armed with deadly weapons with a common object of committing murder of the deceased and in furtherance of the common object of their unlawful assembly on the date, time and place of occurrence, have committed the murder of the deceased and have also caused injuries to PWs. 2 to 4, which evidence on record is consistent and cogent and therefore, as each of the accused are vicariously liable for the act of the other, the trial Judge, without appreciating the same in its right perspective, has committed error in coming to the conclusion that the prosecution has failed to establish the charge leveled against all the accused for the offences punishable under Section 504 read with Section 149 of IPC, insofar as accused No.6 is concerned for the offences under Section 302 read with
- 37 -
Section 149 IPC and insofar as accused No.7 to 10 are concerned, all the charges leveled against them, which finding is contrary to the evidence on record and therefore, it cannot be sustained and it be set aside. The appeals preferred by the accused be dismissed and appeal preferred by the State be allowed and accused be punished in accordance with law.
28. In the wake of the submissions made by the respective Counsels for the parties, taking into consideration the evidence and the documents placed on record, the points that arise for our consideration are:
i. Whether the prosecution has established that the deceased Rangappa @ Ranganagowda has died an homicidal death, PWs. 2 to 4 have sustained injuries on their person. ii. If so, whether the accused are responsible for the homicidal death of the deceased Rangappa @ Ranganagowda and have also caused simple and grievous hurt to PWs. 2, 3 and 4 respectively?
- 38 -
iii. Whether the impugned judgment and order of the trial Court calls for any interference?
29. Re: point No.1: PW6 is the Medical Officer, who has conducted autopsy over the body of the deceased Rangappa @ Ranganagowda. Her evidence reveals that, she conducted autopsy over the body of the deceased on 19.10.2007 and at the time of post-mortem examination she noticed the following external injuries:
1. Cut wound at the top of the crown of the scalp from a point 2' above and 2' behind the left ear to a point on the right side of the scalp 4' above the right eyebrow measuring 7' x 1' bone deep with fracture of the skull felt thro it. Wound is obliquely placed.
2. Cut wound on the Rt. Side of the frontal bone above the lateral end of right eyebrow to a point 4" above the right ear measuring 4" x 3½ " bonde deep.
3. A cut wound on the right parietal bone 1 ½" above the right ear to a point 4' above the right ear to a point 4' above the right ear measuring 4 ½' x 1' x bone deep touching & crossing injury No.2.
- 39 -
4. A cut wound from left check to the left mastoid region measuring 5' x 3 ½" x 1" extending from a point 2 lateral to the left angle of mouth to a point 1" behind the left pinna with avulsion of skin flap including the left ear which is dangling from the anterior end of the wound.
5. Cur lacerated wound measuring 1 ½" x 1" x 1" in size across the left mandible, 1" below the wound No.4.
6. Cur wound 8" x 4 ½" x 2 in size on the left side of the neck from a point lateral to the left sternocledomostoid muscle to the upper border of left scapula, muscles and tendons were found exposed.
7. A cut wound on the left side of the chest extending to the left side of the back from lateral border of left lateral border f sternum to a point at the upper border of left scapula on the back measuring 8 ½" x 3 ½" x 1 ½" size muscles and tenders found exposed with mud and pebbles present in the wound.
8. Fracture of left clavicle.
9. Cut wound measuring 3 ½" x 2" x 1" in size and 1 ¼"
below the wound No.7 at its midpoint mud+pebbles present in wound.
- 40 -
10. Cut wound measuring 8" x 4" x 1" in size, gaping on the left deltoid muscle with mud and pebbles present in the wound. Fracture of left humorous was present.
11. Cur wound measuring 8" x 4" x 1" incise in the left upper arm gaping present.
12. Cut wound on the left olecranol process of the left elbow measuring 1" x 1" x 1" in the lower part.
13. Cut wound measuring 2" x 2 ½" x 1 ¼" in size on the posterior aspect of the left forearm 2" below the left elbow.
14. Cut below measuring 8" x 1" x 1" on the posterio lateral aspect of the left scapula on the back transversely placed gaping.
15. A cut wound measuring 8" x 4" x 2 ½" in size on the right side of the lower back starting from a point 2"
below the right scapula gaping.
16. Cut wound measuring 8" x 2" x 1: in size on the right side of the back (low back) extending upto the right iliac crest of the right pelvic bone gaping.
17. Abrasion in the midline between 2 buttocks measuring 3" x ¼" in size.
- 41 -
18. Abrasion on the chest across the midline measuring 3" x ½" in size at the junction of the upper 2/3 and lower 1/3.
30. She has further stated, on dissection of the body, the skull portion disclosed that the internal alignment of the skull was not intact, fracture of the same as described under external injuries were noticed. The skull membranes were not found intact. On examination of the brain portion, it was found pale and intercerebral hagemerrhage was present in frontal parietal lobes and on both left and right lobes. All the other internal organs were intact and found pale.
31. She is of the opinion that all the injuries, namely external and internal, were ante-mortem in nature. Death might have occurred about 6-18 hours prior to post-mortem examination. In her opinion, death is due to neurogenic shock as a result of the injuries to the vital organ, namely, brain. She has issued post-mortem report as per Ex.P4. In the cross-examination of PW6, nothing has been elicited to discredit her testimony with regard to the injuries that she
- 42 -
has noticed on the body of the deceased, which has resulted in death of the deceased. This evidence of PW6 is further fortified from the evidence of PW23 - CPI, who has held inquest over the body of the deceased, at which point of time, he and the panchas have noticed the injuries that have been reflected in the post-mortem report - Ex.P4 issued by the Medical Officer. This evidence of PW23 is also fortified from the evidence of PWs.1, 2, 4, 11 and 12, who have seen the injuries on the body of the deceased. The deceased having sustained these injuries is also not seriously disputed. On the other hand, the homicidal death of the deceased on account of the injuries sustained was also not seriously disputed by the Counsel appearing for the accused. Therefore, having regard to the evidence that is adverted to above, we are of the view that the deceased Rangappa @ Rangangouda has died on account of the injuries sustained and accordingly, the prosecution has established the deceased Rangappa @ Rangangouda has died an homicidal death.
- 43 -
32. Coming to the injuries sustained by PWs.2 to 4, they in their evidence have stated that, on account of the assault made, they sustained injuries on their person. The evidence on record reveals, immediately after the occurrence, PW3 was treated by PW14 at the Government Hospital, Gokak, who has issued the wound certificate as per Ex.P12. Insofar as other two injured are concerned, namely PWs. 2 and 4, the evidence on record reveals, they took treatment at the hands of PW5 - a private medical practitioner, who has issued the wound certificate in respect of them as per Exs. P2 and P3.
33. PW14 - the Medical Officer, in his evidence has stated that, on 19.10.2007, while he was on duty at Gokak General Hospital, PW3 was brought with the requisition for treatment of the injuries she had sustained. On her examination, he noticed that, she had sustained a lacerated wound at the anterio lateral aspect of left thigh measuring 6 cms x 2 cms x muscle deep. He has issued the wound
- 44 -
certificate in respect of her as per Ex.P12 and the said injury is simple in nature. This evidence of PW14 in respect of he having treated PW3 and having found the injury as reflected under the wound certificate Ex.P12 is not seriously disputed.
34. Therefore, having regard to the evidence of PW3 and that of PW14, in the circumstances, we hold that the prosecution has established that PW3 had sustained simple injuries as projected by the prosecution. Insofar as PWs. 2 and 4 are concerned, PW2 claims that she had sustained the injury on her face due to the assault made with an axe. PW5 is the Medical Officer who has treated her in his private nursing home. The evidence of PW5 reveals that, on 19.10.2007 at about 3.00 am, he treated this PW2 and at that time, he has noticed an injury on the right side of her face i.e., lacerated wound with sharp edges measuring 9 cms, which was deep, there was bleeding from the said injury and there was clinical fracture of the mandible. He also noticed a cut lacerated wound inside the mouth below the gum.
- 45 -
Another cut lacerated wound with sharp clean edges measuring 5 cms in length situated anterior to the chest upper and the sternum region. There was a contusion on the left side of the head. X-ray revealed fracture of the right mandible. He has issued the wound certificate in respect of her as per Ex.P2. Nothing has been elicited in his cross- examination to discredit his testimony. PW3 has also testified to the effect of she shaving sustained injuries as noticed by PW.5.
35. He has further stated, on 20.10.2007, at about 12.30 pm, he treated a person by name Kareppa Fakirappa Patil i.e., PW4 and he noticed the following injuries on him:
i. Swelling iffermative over the left forearm, at middle 1/3rd crepates present ii. CLW over the Rt. Ear with sharp edges extending behind ear and up to cartilage brown haemtom was found present.
iii. X-ray of the Lt. forearm discloses fracture of middle 1/3 of the radius bone with distal
- 46 -
radial Alna joint subluxution was present X- ray of the skull discloses no fracture of skull vile.
36. He has issued the wound certificate in respect of him as per Ex.P3. In the cross-examination of this witness, nothing has been elicited to disbelieve his testimony in respect of the injuries, which he has noticed on the person of PW4 and reflected in the wound certificate Ex.P3. The evidence of PW4 also reveals that, he had sustained the said injuries on his left hand and also on his head. Nothing has been brought out in the cross-examination to discredit the testimony to hold otherwise than what is projected by the prosecution in respect of PW.2 and PW.4 having sustained the injuries on their person.
37. Therefore, we are of the view, having regard to the evidence of PWs.2 to 4, PW5 and PW14, the prosecution has established that PWs.2 to 4 have also sustained simple and grievous injuries on their person as projected by the prosecution.
- 47 -
38. The prosecution in order to establish that the accused are responsible for the homicidal death of the deceased Rangangouda @ Rangappa and have caused simple hurt to PW.3 and grievous hurt to PWs.2 and 4 have relied upon the direct testimony of PWs.1 to 4, PWs.11, 12, Ex.P.1 filed by PW.1 before PW.21- ASI on the intervening night of 18th and 19th October, 2007 at about 12.00 midnight and the recovery of MOs.5, 2, 1, 3 and 4 at the instance of A.1 to A.5 respectively coupled with the evidence of Investigating Officer and official witnesses namely, the Medical Officers in the case.
39. As already pointed out, it is the case of the prosecution, on 18.10.2007 at about 9.00 p.m. the accused having formed themselves into an unlawful assembly armed with deadly weapons like axe, sickle, chopper, iron-rod etc., came near the house of the deceased at Ajjanakatti with the common object of murdering the deceased and in furtherance of their common object A.1 to A.6 entered the house of the
- 48 -
deceased, tried to drag him out, when the deceased resisted, A.1 assaulted the deceased on the head with axe, A.2 and others assaulted the deceased with the weapons with which they were armed and after the said assault, the deceased tried to escape through the backdoor and in the meantime, when PWs.1, 2 to 4 came to rescue the deceased, A.1 aimed a blow at PW.1, she escaped and it landed on the right side face of PW.2, resulting in grievous injuries. Thereafter, A.1 assaulted PW.3 - daughter of PW.2 on her left thigh, due to which, she has sustained simply injury and thereafter, A.1 assaulted PW.4, who also came to rescue the deceased on the head with axe followed by A.6 with iron-rod on the left hand, due to which, he sustained fracture and in the meantime; when the deceased was trying to escape from the backdoor, the other accused namely A7 to A10 came near the backdoor, prevented him from going out of the house and at that juncture, A7 to A10 instigated and abated the other accused to finish off the deceased, in pursuance of which, the accused assaulted the deceased, to which he sustained severe injuries
- 49 -
and collapsed at the spot. After the occurrence, PW.1 removed the three injured in a vehicle to Gokak Police Station and there she filed her complaint as per Ex.P.1 before PW.21- ASI at about 12.00 midnight on the intervening night of 18th and 19th October, 2007.
40. A perusal of the recitals in Ex.P.1 filed by PW.1 reveals that it was A.1 to A.4, who entered the house and thereafter, A.1 assaulted the deceased with axe on the head followed by A.2 to A.4, who assaulted the deceased with the weapons, which were in their hands. No specific overt act is attributed to these A.2 to A.4 in respect of the assault made on the deceased. In Ex.P.1 it is made clear, after A.1 assaulted, A.2 to A.4 assaulted the deceased, due to which, he sustained injuries. After sustaining injuries, the deceased tried to escape through the backdoor. At that point of time, when she and PWs.2 to 4 went to rescue, A.1 aimed a blow at her, it missed and landed on the right side face of PW.2 resulting in grievous injuries to her. Nextly, A.1 assaulted
- 50 -
PW.3 on her left thigh, due to which, she sustained simple injury. Thereafter, A.1 assaulted PW.4. In her evidence also she has adhered to the very same overt act as reflected in Ex.P.1. In Ex.P.1 she has also stated that after the assault was made inside the house, A.5 to A.10 came near the backdoor and they prevented the deceased from going out of the house and among them, A.5 and A.6 instigated the accused to finish off the deceased, in pursuance of which, all the accused assaulted the deceased in backyard, due to which, he collapsed at the spot. Neither in Ex.P.1 nor in her evidence she has mentioned the role of A.5, inasmuch as either he having entered the house along with A.1 to A.4 or assaulting the deceased or PWs.2 to 4. The role attributed to A.5 by PW.1 in her complaint and the evidence before the Court is that he along with A.6 to A.10 came near the backyard, prevented the deceased from going out of the house and thereafter, he along with A.6 abated the other accused to finish off the deceased. As pointed out earlier, Ex.P.1 and the testimony of PW.1 are silent with regard to the overt act of
- 51 -
A.5. The evidence of PWs.2 to 4, who are the injured eyewitnesses, though goes to show that A.5 had entered the house, their evidence does not reflect the specific overt act attributed to A.5 in assaulting the deceased or PWs.2 to 4. Their evidence reveals that it was A.7 to A.10, who came near the backyard and they prevented the deceased from going out of the house and it is they who abated and instigated the other accused to finish off the deceased including A.5 and A.6. It is not the case made out in Ex.P.1 or in the evidence of PW.1. The trial Judge disbelieving the evidence of PWs.1 to 4 and PWs.11 to 13 has come to the conclusion that there is no evidence to show that A.7 to A.10 had either instigated or abated the accused to commit the murder of the deceased and in that view of the matter, since Ex.P.1 and the evidence of PW.1 is silent as to the role played by A.5 and in view of the finding given by the trial Judge that the instigation given by A.7 to A.10 cannot be believed, it is unthinkable that A.5 and A.6 would have abated the other accused to finish off the deceased as claimed by PW.1 standing near the hind door of
- 52 -
the house of the deceased. Taking from any angle, in view of what is spelled out in Ex.P.1 and the testimony of PW.1, we find it difficult to accept the case of the prosecution that A.5 had any role either in committing the murder of the deceased Rangangouda or assaulting the injured witnesses PWs.2 to 4, as none of these witnesses i.e., PWs.1 to 4 have whispered any overt act as against A.5 either as against the deceased or PWs.2 to 4. Therefore, we are of the view that the trial Judge has committed an error in holding that A.5 has also participated in the murder of the deceased and also causing injuries to PWs.2 to 4.
41. Insofar as A.1 to A.4 are concerned, we have the evidence of PW.1 and the injured witnesses PWs.2 to 4. PW.1 is none other than the wife of the deceased. PWs.2 to 4 are the sister-in-law, niece and father of the deceased. Apart from these witnesses, we have also the evidence of PW.11, who is the mother of the deceased, who according to the prosecution was also present in the house of the deceased at
- 53 -
the time of the occurrence. Apart from these witnesses, we have also the evidence of PW.12 - brother of the deceased, who is alleged to have seen the assault made on the deceased in the backyard coupled with the evidence of PW.13 - a coolie working under PW.12, who claims that he saw the accused taking to their heels after assaulting the deceased. The evidence of PWs.1 to 4 in respect of the assault made on the deceased is consistent and cogent. All these witnesses in their evidence have consistently stated that it was A.1 who assaulted the deceased with axe on the head followed by A.2 to A.4 with the weapons with which they were armed. No doubt, as rightly submitted by the learned counsel for the accused, no specific overt act has been attributed to A.2 to A.4 with regard to the assault made on the deceased. But the evidence on record clearly discloses that all these three accused have also assaulted the deceased with the weapons with which they were armed after A.1 assaulted the deceased with axe on the head. The evidence of PW.11 also goes to show that A.1 assaulted the deceased with axe on the head.
- 54 -
No doubt, all these witnesses having regard to the relationship inter se with the deceased are interested witnesses. Merely because, they are interested and partisan witnesses, it is not the law that their evidence has to be brushed aside in toto, on the other hand, what is required is before placing any reliance on their evidence it should be subjected to close scrutiny. We have gone through their evidence in detail. Their evidence as already pointed out is consistent and cogent in respect of the assault made by these A.1 to A.4 on the deceased. It is further corroborated from the evidence of the medical officer -PW.6, who has held autopsy and has noticed the injuries on the body of the deceased as stated to by these witnesses. In a situation like this, one cannot expect each of the witnesses who are also injured to specifically say with what weapons each of the accused assaulted on which part of the deceased. Since the occurrence has taken place inside the house of the deceased and as of the presence of these witnesses cannot be doubted in any manner having regard to their relationship, we find no
- 55 -
substance in the contention of the learned counsel for the accused in the absence of any overt act of each of the accused, their testimony cannot be believed.
42. Insofar as the assault made on PWs.2 to 4 is concerned, as rightly submitted by the learned counsel for the accused, there is no mention as to the overt act of A.6 in Ex.P.1 and in the evidence of PW.1.But, the evidence of PWs.2 to 4 who are the injured eyewitnesses whose statement has been recorded very next day of the occurrence by PW.23 - Investigating Officer reveals that PW.2 sustained grievous injury on account of the assault made by A.1 with axe on her face. PW.3 sustained simple injury on the left thigh due to the assault made by A.1 with axe. PW.4 has sustained injury on the head due to the assault made by A.1 and fracture of left hand due to the assault made by A.6. The evidence of PWs.2 to 4 is consistent and cogent in respect of the assault made on them by A.1 and A.6. It is settled position of law that the injured witnesses will never exculpate their assailants. PWs.2,
- 56 -
3 and 4 in their evidence have consistently stated at whose hands they sustained injury on their person. It is further fortified from the evidence of PWs.5 and 14 - the medical officers, who have treated PWs.2, 4 and 3 respectively and have issued wound certificates, which we have adverted to above. In the cross-examination of these witnesses, nothing, in our view, has been brought on record with regard to the assault made on the deceased and PWs.2 to 4 in order to discard the same. Since their evidence is consistent and cogent, we are of the clear view that it is A.1 to A.4, who have assaulted the deceased and three injured and further it is A.6, who has assaulted PW.4 and caused him injury as stated to above. In that view of the matter, we have no hesitation to hold that A.1 to A.4 will have to be held guilty of having committed the murder of the deceased and injuries to PWs.2 to 4, and A.6 to be held guilty for having caused injury to PW.4.
- 57 -
43. Insofar as PW.11 is concerned, her evidence reveals that it was A.1 along with others entered the house of the deceased. She has also stated that it was A.1, who assaulted her deceased son with axe on head. Her evidence also reveals that A.1 assaulted the deceased on the head with axe and likewise, he also assaulted her husband PW.4 with axe on the head. She does not attribute any overt act against any of the accused vise versa PWs.2 and 3. Despite this, in view of the evidence of PWs.1 to 4, we are of the view that it is A.1 to A.4, who have assaulted the deceased and committed the murder and it is A.1, who has caused the grievous hurt to PWs.2 and 4 and simple hurt to PW.3 and A.6 assaulted and caused grievous hurt to PW.4.
44. Insofar as PW.12 - brother of the deceased is concerned, admittedly, he is not a witness to the occurrence that has taken place inside the house. His evidence reveals that on hearing the commotion he came from the backyard of the house of the deceased and at that point of time he noticed
- 58 -
the accused assaulting the deceased in the backyard. He does not say either instigation or abatement made by any of the accused. The evidence on record reveals that he has come on hearing the commotion. But the prosecution has also examined another witness PW.13, who was working under him as coolie. He claims when he came, he saw the accused taking to their heels. PW.13 has not come to the spot along with PW.12. If at all really he was present in the house of PW.1, PWs.12 and 13 would have come together and witnessed the occurrence. At any rate, the evidence of PW.12 does not inspire any confidence to show that he has seen some of the accused abating the other accused to finish off the deceased and the accused assaulting the deceased in the backyard, but this by itself would not take away the other evidence on record, which is consistent and cogent with regard to the offences committed by A.1 to A.4 and A.6.
45. The learned senior counsel further vehemently attacked the evidence of these witnesses as untrustworthy on
- 59 -
the ground of delay in lodging the first information by PW.1. According to him, though the occurrence has taken place at about 9.00 p.m. in view of the admission given by PW.1 that she filed complaint at 4.00 a.m., the time gap between the occurrence and filing of the complaint by her would go to show that it has been marked for falsely implicating the accused and planting the witnesses. In this connection, he also relied upon the evidence of PW.17, who has carried the first information report to the Jurisdictional Magistrate. We do not find any merit in the said contention. The occurrence has taken place at about 9.00 p.m. in the house of the deceased at Ajjanakatti village. First information has been lodged by PW.1 at Gokak Rural Police Station, which is at a distance about 16 kms on the intervening night of 18th and 19th of October, 2007 at about 12.00 mid night before PW.21- ASI. PW.21 after registering the case has issued FIR and that has reached the Magistrate at about 5.20 a.m. on 19.10.2007. Having regard to the time and occurrence, the time at which first information has been filed before the police
- 60 -
on that intervening night at about 12 midnight and it having reached the Magistrate at 5.20 a.m, we do not see there is any delay and that delay has been marked for falsely implicating the accused. No doubt, the motive that has been projected in the first information has been given a go by with the different motive projected by PW.1 in her evidence before the Court. It is the direct evidence, which will have to be looked into and the Court is expected to sift the grain from the chaff. As already pointed out, on a close scrutiny of the evidence of these witnesses, we are of the clear view that their evidence is consistent and cogent in respect of the assault made by A.1 to A.4 and A.6 on the deceased and injured witnesses and insofar as A.6 is concerned as against PW.4.
46. Though learned Public Prosecutor vehemently contended that each of these accused are vicariously liable for the acts done by each other and are to be held guilty for the offences by virtue of Section 149 of I.P.C, in the facts and circumstances, we are unable to accept the said submission
- 61 -
having regard to the recitals in Ex.P.1 and the evidence of PW.1 and overt act attributed to each of the accused. Therefore, in these circumstances, we are of the clear view that A.1 to A.4 are guilty of committing the murder of the deceased and causing injuries to PWs.2 to 4 and further A.6 is guilty of causing injury to only PW.4.
47. Insofar as other accused are concerned, namely, A.7 to A.10 as already pointed out the recital in the first information and the evidence of PW.1, who has filed Ex.P.1 does not reveal that these people had trespassed into the house of the deceased. As already pointed out, it discloses that these people had come near the backdoor and prevented the deceased from going out and it is A.5 and A.6, who instigated the other accused to finish off the deceased, upon which, the accused assaulted the deceased, due to which, he collapsed at the spot. The evidence of PWs.2 to 4 is to the other effect that it was A.7 to A.10, who came near the backdoor and instigated the other accused to finish off the
- 62 -
deceased. In view of this contradiction and in view of absence of the role played by A.5 either in Ex.P.1 or in the testimony of PWs.1 to 4, we find it difficult to hold A.7 to A.10 guilty of any of the offences levelled against them. The learned trial Judge on an appreciation of the evidence on record has come to the right conclusion in acquitting A.7 to A.10 on the ground of want of evidence. Apart from this, the evidence on record also does not show that any of these accused had prevented the deceased from going out of the house and committed any offence. All the accused in the case have been acquitted of the charges for the offence punishable under Section 504 r/w. 149 of IPC. In that view of the matter, having regard to the facts and circumstances, we find no error in the finding of the trial Judge acquitting accused Nos.7 to 10 in the case.
48. In that view of the matter, we are of the view that the finding of the trial Judge that A.5's guilty cannot be sustained as held above. Insofar as A.1 to A.4 and A.6 are
- 63 -
concerned, we find no infirmity in the finding of the trial Judge in convicting them of the offences for which they have been found guilty. Further, we also do not find any infirmity in the impugned judgment and order of the trial Jude in acquitting the accused of the offences indicated in his order calling for interference in this appeal. In view of we having held that A.6 is guilty of causing grievous hurt only in respect of PW.4, the finding of the trial Judge that he is guilty of the offence under Section 143, 148, 342 r/w. 149, 324 r/w. 149 of IPC cannot be sustained. The conviction of A.6 for the offence punishable under Section 452 r/w. 149 and 326 r/w. 149 of IPC stands affirmed. We find from the sentences passed, A.6 has been sentenced to undergo four years RI and to pay a fine of Rs.3,000/- for the offence under Section 452 r/w. 149 of IPC and likewise, he has been sentenced to undergo RI for 6 years and to pay a fine of Rs.5,000/- for the offence punishable under Section 326 r/w. 149 of IPC.
- 64 -
49. At this stage, learned counsel for A.6 submitted that A.6 on the date of the occurrence was aged 34 years. He has four children and aged mother of 70 years, who is blind. Taking the same into consideration, a lenient view be taken and appropriate sentence be passed on him. Having regard to the act attributed to him, which has resulted in simple fracture to PW.4, in the circumstances, sentences that have been passed on him by the trail Judge, in our view, is on the higher side. While confirming the conviction for the offences under Section 452 r/w. 149 of IPC and 326 r/w. 149 of IPC, we modify the sentence passed and sentence him to undergo to three years of RI for each of the said offences and to p pay a fine of Rs.2,000/- on each for the said offences, in default to undergo S.I. for three months. In the result, for the foregoing reasons, we proceed to pass the following:-
ORDER i. Criminal Appeal Nos.2509/2011, 2510/2011 and 2783/2011preferred by the State are dismissed.
- 65 -
ii. The bail bonds executed by the respondents/accused and their sureties in Criminal Appeal Nos. 2510/2011 and 2783/2011 stand discharged.
iii. Criminal Appeal No.2561/2012 preferred by accused Nos.1 and 3 is also dismissed.
iv. Criminal Appeal No.2502/2011 preferred by
accused No.5 - appellant No.3 - Gopal
Venkappa Pujari is allowed in toto. He is
acquitted of all the charges levelled against him. He is in custody. He is ordered to be set at liberty forthwith, if not required in any other case.
v. Criminal Appeal No.2502/2011 preferred by appellant Nos.1 and 2 - accused Nos.2 and 4 is dismissed.
vi. Criminal Appeal No.2771/2010 preferred by appellant/accused No.6 is partly allowed. He is acquitted of the charges levelled against him under Sections 143, 148, 342, 324 r/w. 149 of IPC. The judgment and order of conviction for the offences under Sections 452 and 326 of IPC is confirmed.
vii. Insofar as sentence passed on him is concerned, it is modified and he is sentenced to undergo R.I. for three years for each of the counts and to pay a fine of Rs.2,000/- on each of the counts for which he has been convicted, in default to undergo S.I. for three months for each of the said offences. The sentences passed on accused No.6 are ordered to run concurrently. He is also
- 66 -
entitled to set off as provided under Section 428 of Cr.P.C.
viii. It is brought to our notice that accused No.6 after the judgment and order came to be passed by the trial Court has preferred this appeal and has been enlarged on bail by suspending the sentence. In that view of the matter, we direct appellant/ accused No.6 - Siddappa Venkappa Pujari to surrender before the Court and to serve the sentence passed on him.
Sd/-
JUDGE Sd/-
JUDGE Vnp*/Gab/SA