IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 18TH DAY OF MARCH 2011 PRESENT THE HON’BLE MR. iUSTICE SUBHASH B. ADI AND THE HON’BLE MR. JUSTICE N. ANANDA c.MJNAiAiAki9l9J2°5 BETWEEN: STATE THROUGH PUBLIC PROSECUTOR, KOPPAL, ... APPELLANT (BY SHRI.V.M,BANAKAR, ADDL. S,P.P.) AND I. SYDUSAB, S/O HUSSAINSAB HIREMANI, MUSLIM, AGED ABOUT 41 YEARS, OCCUPATION: AGRICULTURE 2. MEMBER IMAMSAB IMAMSAB, S/O HUSSAINSAB HIREMANI, AGED ABOUT 43 YEARS, OCCUPATION: AGRICULTURE 3. HUSSAINSAB, S/0 IMAMSAB HIREMANI, MUSLIM, AGED ABOUT 19 YEARS. OCCUPATION: AGRICULTURE 4. SYDUSAB, 5/0 IMAMSAB HIREKOPPA, MUSLIM, AGED ABOUT 50 YEARS, OCCUPATION: AGRICULTURE 5. HUSSAINSAB, 5/0 RAHIMANSAB HIREMANI, AGED ABOUT 45 YEARS, OCCUPATION: AGRICULTURE ALL ARE R/O MUDHOL, YELABURGA TALUK, KOPPAL DISTRICT. RESPONDENTS (By Sri.R.BDESHPANDE, ADV. FOR Rl-R5 ABSENT) This Criminal Appeal is filed under Section 378(1) and (3) of the Code of Criminal Procedure, by the State P.P. for the State to grant leave to file an appeal against the judgment and order of acquittal dt.28-07-05 passed by the S,J, Koppal, in SCNo 125/00 acquitting the respondents-aceused for the offenees p/u/as 143, 147, 148, 326, 333 r/w 149 of LPC. This criminal appeal coming on fbr final hearing this day N Ananda J , delivered the follo 7 ing: 1W a 1* I ii lay ILj 1r It I I!I r be ‘a I Sot 4 ,tv 4-4 WI hi 1111 w 4 Mudhol village. PW.8 - Jagadevayya, the then AS! of Yelburga P.S., PW. 11- Sugarshavali, the then police constable of Yelburga P.S., with some home guards were on bandobast duty. On 16.4.2000, at about 8.00 a.m., procession in connection with Moharrum festival was proceeding in front of Goolibasappa temple of Mudhol village. There was a quarrel between the group led by accused and some of the prosecution witnesses. When PW.8 intervened to pacify the quarrel, accused Nos.1 to 5 warned PW.8 not to interfere and asked him to keep quite. Accused Nos. 1 to 5 formed into an unlawful assembly. Accused No.2 assaulted on the chest of PW.8 and accused No.3 assaulted on the mouth of PW.8 with a club, as a result, two of his teeth in upper jaw were broken. The first information was lodged by PW.8 and he was treated by PW. 1 - Dr.N.Laxminarayana Rao in Government Hospital at Yelburga. PW. 1 had noticed foilowing injuries: a) Lacerated wound over the upper lip measuring 2cmxlcm ear%_L:twJ2 5 b) Bleeding present. c) 2 incisors of teeth broken d) Tenderness over the right chest. 5. The Investigating Officer visited the place of occurrence and seized the incriminating articles including the banian (MO.2) and shirt (MO.3) of PW.8. The Investigating Officer recorded the statements of witnesses and recovered club at the instance of voluntary statement made by accused No.3 and submitted charge sheet 6. During trial, PWs. 1 to 15 were examined. The documents as per Ex.P1 to P16 and MO’sl to 4 were marked. The defence has not marked any documents. 7. The version put forth by the defence was that, the accused were assaulted by some of the prosecution witnesses. In that connection, accused No.1 had suffered injuries, a case was registered against some of the prosecution witnesses and they were tried in S.C. 121/2000. Therefore, this case should have been fl-i 6 tried along with S.C No.121/2000, as the instant case and S.C.121/2000 were a case and a counter case. PW.8 in order to support some of the prosecution witnesses had lodged a false complaint. 8. The learned trial judge on appreciation of evidence has held; I. Then was no need to try this case along with S.C.No.121/2000. PW.8 was not an assailant and he was not arrayed as an accused in S.C.No. 12 1/2000. II. The occurrence took place in a procession. Therefore, the evidence of PWs.8, 11, 12 and 15 that accused Nos. 1 to 5 had formed into an unlawful assembly and accused No.2 had assaulted PW.8 on his chest and accused No.3 assaulted on the mouth of PW.8 with a club, cannot be accepted. III. There is inconsistency between direct evidence and medical evidence In the sense, PW 8 has deposed that two of his teeth of upper jn sere broken; onli one tooth was produced before the court: as per medical ci idence there was dislnr itiop nf tj’ teeth. I 7 W. The learned trial judge has made distinction between breaking of tooth and dislocation of tooth to discard the evidence of PWs.8, 11, 12 and 15. V. The evidence adduced by prosecution witnesses is not free from reasonable doubt more particularly when accused No.1 had also suffered injury in the same incident. 9. We have gone through the evidence adduced on behalf of prosecution. We find that PW.8 - Jagadevayya, ASI of Yelburga P.S. was on bandobast duty; PW. 11 - Sugarshavali, police constable of same police station was also on bandobast duty. Except PWs. 12 and 15 other eyewitnesses did not support the case of prosecution and they were declared as hostile witnesses. Therefore, the proof of prosecution case entirely rests upon the evidence of PWs.8, 11, 12 and 15 and also on medical evidence given by PW. 1 - Dr.Laxminarayana Rao. 8 10. Before adverting to ocular evidence we deem it proper to refer to medical evidence given by PW, 1 — Dr.N.Laxminaravana Rao. PW. I has deposed; at the relevant time, he was working as a Medical officer in Government Hospital at Yelburga. On 16.04.2000 at 11:30 a.m., he examined PW.8 and found following injuries: a) Lacerated wound over the upper lip measuring 2 cm x 1 cm b) Bleeding present. c) 2 upper incisors were broken d) Tenderness over right chest. PW. 1 has opined that, injuries found on PW.8 could be caused due to assault with a club. PW. I was subjected to extensive cross examination regarding assessment of age of injury and also regarding dislocation of tooth or the breaking of tooth, 9 PW. 1 was also cross-examined with reference to manner of assault to elicit his opinion that, PW8 would have suffered injuries on his gums, inner part of upper lip, if he had been assaulted on his mouth with a club which had resulted in breaking/dislocation of his two teeth. 11. In our considered opinion, the discrepancies sought to be highlighted by the defence relying on the medical evidence of PW. I cannot be accepted. Whether the teeth of PW. 1 w broken or dislocated, the fact remains that, PW.8 had suffered lacerated injury measuring 2 cm x 1cm on his upper lip due to assault with a club. 12. PW.8 has deposed; he as assaulted by accused Nos,2 and 3. On 16O42OOO. at about 08:00 a.m., there was Moharrum procession in front of Gooli Basaveshwara temple of Mudhol village. At that time, there as a quarrel between the iccused and his brothers. PW 8 tried to pac’ f’, th it arrel that 10 time, accused No.2 warned PW.8 not to interfere. So saying, accused No.2 assaulted on the chest of PW.8. Accused No.3 assaulted on the mouth of PW.8 with a club, as a result, two of his teeth were broken. Some of the prosecution witnesses and other constables rescued PW.8. PW.8 came to the jurisdictional police station at 11:00 am., on 16.04.2000 and lodged first information marked as per Ex.P7. He was treated by PW. 1 in the Government Hospital at Yelburga. 13. Much of the cross-examination of PW.8 has been directed about the case, which was initiated for the injuries suffered by accused No.1 and other persons. As already stated, PW.8 was not the assailant and he had not caused injuries to accused No.1. Therefore, the case initiated and tried for the injuries suffered by accused No.1 and others at the hands of rivals of accused No.1 cannot be treated as counter case and it was not necessary for the prosecution to explain the injuries suffered by accused r’-’ 11 No.1. PW.8 was on bandobast duty, he did not have enmity or motive to falsely implicate the accused, so also, PW. 11 who was also on bandobast duty. 14. PW. 11 has deposed that; at the time of occurrence, PWs.8, 11 and other home guards were on bandobast duty. When the Moharrum procession came near Gooli Basaveshwara temple there was clash between two groups, one lead by CW. 11 - Gudsab and CW. 12 Murtujasab and other group lead by accused No.1. When PW.8 intervened to pacify the quarrel, accused No.2 assaulted him on chest, accused No.3 assaulted on the mouth of PW.8 with a club. As a result, two teeth of upper jaw of PW.8 were broken. CW.9 - Basavaraja and CW. 10 - Basappa intervened and saved PW.8 from the hands of accused. During cross-examination, it has been suggested to PW. 11 that there was group clash between the accused and some of the prosecution witnesses. In the discussion made supra we have narrated the 12 relevancy of case filed against some of the prosecution witnesses for assaulting accused No 1 and others. Therefore, we find that the evidence adduced by PW. 11 leads substantial corroboration to the evidence given by PW8. 15. PW.12 has deposed; on 16.042000, at about 05:30 p.m, Moharrum procession started in Mudhol village. On that day, at about 08:00 a.m., the procession reached Gooli Basavanna temple. At that time, the accused picked up quarrel with PW, 12 and his brothers. PW,8 intervened to pacify the quarrel. The accused told that there was no need for Police to intervene in the quarrel. Accused No.2 assaulted on the chest of PW.8. Accused No.3 assaulted on the mouth of PW.8 with a club. There was bleeding from the mouth of PW.8 and two of his teeth were broken. The clothes worn by PW.8 were stained with blood. 13 During crossexamination, PW, 12 has denied that PW. 12 and others had attacked the group of accused No. I and they had assaulted accused No. 1. 16. It is the definite evidence of PWs.8 and 11 that when there was a quarrel between persons belonging to accused and persons belonging to PW. 12, PW.8 tried to pacify the quarrel. At that time, accused Nos.2 and 3 assaulted PW.8 as aforestated, 17. PW. 15 - Kasimsab had deposed; that on 16.04.2000, there was Moharrum procession in Mudhol village. On that day, at about 08:00 a.m., the procession reached near Gooli Basaveshwara temple. At that time, there was a quarrel between the persons belonging to group of accused and persons belonging to group of PW. 12 At that time, accused warned PW 8 not to interfere, Accused No.2 assaulted PW.8 on his chest, accused No.3 assaulted on the mouth of PW.8 with a club. He suffered bleeding injury and one of his teeth was broken, The other tooth broke and fell down. 14 The uniform and clothes worn by PW.8 were stained with blood. During cross—examination, it has been suggested to PW.15 that accused No.1 was assaulted in the incident and that accused No.1 and others had lodged first information against CWs. 11, 12, 14 and 15 and they were tried and acquitted in SC. 121/2000. There was rivalry between the partymen of accused and partymen of PWJ5. 18. Tn the discussion made supra, we have held that, PW.8 was not arrayed as an accused in S.C.121/20000. The defence has no case that PW.8 who was on bandobast duty had assaulted accused No.1 and others and caused injuries. Therefore, the defence version that prosecution should have explained the injury suffered by accused No.1 in the instant case has no basis. Thus, we find that PWs,8, 11, 12 and 15 have given consistent evidence that accused No.3 assaulted with a club on the mouth of - —t- I — - - - 15 PW.8 and one of his teeth broken and other tooth was dislocated, In fact, the dislocated tooth was marked as M.O.4 before the trial court. The blood stained banian and shirt of PW.8 were marked as M.Os.2 and 3. The club which was used to assault PW.8 was marked as M.O.1. 19. The medical evidence given by PW. 1 Dr.N.Laxminaravana Rao would lend substantial corroboration to the evidence of PWs.8, 11, 12 and 15. 20. The learned trial Judge has held that there is inconsistency between medical evidence and direct evidence. The learned trial Judge has taken much pain to distinguish between breaking of teeth and dislocation of teeth. Even if it is assumed that the prosecution had failed to prove that the injuries suffered b PW.8 were not grievous in nature, that cannot be a ground to discard the evidence of PW.8, PW. ii PW.12 and PW. 15 that accused No.3 assaulted : 16 on the mouth of PW.8 with a club to deter him from discharging his duties as a public servant. As regards the assault attributed to accused No.2, evidence of PWs.8. 11. 12 and 15 would reveal that accused No.2 had assaulted on the chest of PW,8, however, we do not find corresponding injuries on chest of PW.8. Thus, the evidence adduced against accused No.2 is not free from reasonable doubt. 21. The evidence of PWs.8, 11, 12 and 15 does not prove that accused Nos. 1 to 5 were the members of unlawful assembly. Admittedly the incident of assault on accused No, 1 took place when two parties, one lead b persons belonging to accused and other lead by persons belonging to PW. 12 confronted each other. In the circumstances, it is not possible to hold that accused Nos. I to 5 were the members of unlawful assembly. Yet the fact remains that, there is consistent. credible evidence given by PWs.8, 11, 12 and 15 that ac••cused No3 assaulted on the mouth of 17 PW8 with a club to deter PW.8 from discharging his duties as a public servant. The learned trial Judge has discarded the prosecution evidence mainly relying on the injuries suffered by accused No.1. PWs.8, 11, 12 and 15 have not deposed that accused No.1 had assaulted PW.8 and the defence has no case that PW.8 had assaulted accused No. 1. PW.8 was not an accused in S.C.No,121/2000. Therefore, in the instant case, the prosecution was not bound to explain the injuries suffered by accused No.1. 22. In view of the above discussion, the judgment of acquittal of accused No.3 cannot be sustained, in the discussion made supra, we have held that accused No.3 assaulted on the mouth of PW.8 with a club to deter PW.8 from discharging his duties as a public servant. Therefore, the acts committed by accused No.3 would squarely attract an offence punishable under Section 332 of IPC, fJ r’— lx 23. Accused No.3 had assaulted PW.8, ASI of Yelburga P.S. who was on bandobast duty to maintain law and order in Moharrum procession and accused No.3 assaulted PW.8 to deter him from discharging his duties as a public servant. When PWs.8. 11 and other home guards were posted to maintain the law and order during procession to prevent untoward incidents, accused No.3 had no justification to assault PW.8 from discharging his duties as a public servant. Therefore, taking into considering the maximum punishment provided under Section 332 I.P.C., we deem it proper to sentence accused No.3 to undergo imprisonment for a period of two years and pay fine of Rs, 1O,OOO/. 25. In the result we pass the following: ORDER The appeal is accepted. The impugned judgment of acquittal of accused Nos. 1 to 5 for offences 19 punishable under Sections 143, 147, 148, 326, 333 read with Section 149 of 1.P.C. is confirmed. Accused No.3 Hussainsab is convicted for an offence punishable under Section 332 I.P.C. Accused No.3 is sentenced to undergo simple imprisonment for a period of two years and pay fine of Rs, 1O,OOO/, in default, to undergo simple imprisonment for a period of three months. The order of the trial court regarding destruction of properties (MOs. 1 to 4) is confirmed. The period of detention undergone by accused No3 during trial is given set off as provided under Section 428 CrPC. Sd/ JUDGE Np/Rsh.