a 1 IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT DHARWAD DATED THIS THE 30 TH DAY OF MARCH, 2011 PRESENT THE HON BLE MR. JUSTICE SUBHASH B ADI AND THE HONK BLE MR. JUSTICE NANANDA CRLANO 2331 OF 205. BETWEEN THE STATE BY POLICE SUB INSPECTOR KAGINELLI POLICE STATION APPELLANT (BY SRI. VMBANAKAR, ADDL. SPP) AND: 1. BASAVANTAPPA FAKKIRAPPA AJJAPPALI AGE; 55 YEARS, CCC; AGRICULTURE RIO SUDAMBI BYADAGI TALUKA 2 BASAVANTAPPA VEERAPPA POO3AR Age: 64 YEARS, 0CC; AGRICULTURE R/O SUDAMBI BYADAGI TALUKA 3 CHANABASAPPA MALLAPPA NELL IKOPPAD AGE; 72 YEARS 0CC AGRICULTURE RIO SUDAMBI BYADAGI TALUKA Id 2 4. SURESH FAKKIRAPPA AJ)APAU AGE; 36 YEARS, 0CC; AGRICULTURE RIO SUDAMBI BYADAGI TALUKA 5. CHANDRAPPA FAKKIRAPPA AJ)APAU AGE; 36 YEARS, 0CC; AGRICULTURE RIO SUDAMBI BYADAGI TALUKA 6. VEERESH FAKIRAPPA A.JJAPAU AGE; 34 YEARS, 0CC; AGRICULTURE RIO SUDAMBI BYADAGI TALUKA 7. RAVINDRA BASAVANTAPPA POOJAR AGE; 32 YEARS, 0CC; AGRICULTURE RIO SUDAMBI BYADAGI TALUKA 8. SHANTAPPA CHANABASAPPA NELLIKOPPAD AGE; 37 YEARS, 0CC; AGRICULTURE RIO SUDAMBI BYADAGI TALUKA 9. SOMAPPA KALLAPPA GADDADA 0CC: AGRICULTURE RIO SUDAMBI BYADAGI TALUKA 10. NAGAPPA MALLAPPA AJJAPAU AGE: 44 YEARS, 0CC; AGRICULTURE RIO SUDAMBI BYADAGI TALUKA 11. KARABASAPPA MOOKAPPA KARINAGANNAVAR AGE: 26 YEARS, 0CC; AGRICULTURE RIO SUDAMBI BYADAGI TALUKA RESPONDENTS (BY SRI. S N BANKAR, ADVOCATE FOR R1-R4 & R6-R11) “I 3 CRL.A. FILED U/S.378(1) & (3) CR.P.C. BY THE STATE P.P. FOR THE STATE PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGEMENT DT. 5.9.2005 PASSED BY THE P.O., F.T.C., HAVERI IN S.C.NO. 127/2001, ACQUITTING THE RESPONDENTS- ACCUSED FOR THE OFFENCE P/U/S. 143, 147, 148, 323, 324, 307, 504 AND 506 R/W 149 OF IPC. THIS APPEAL COMING ON FOR HEARING THIS DAY, SUBHASH B ADI 3, DELIVERED THE FOLLOWING: JUDGMENT This appeal Is by the State against the judgment of acquittal dated 5” September 2005 in S.C.No.127/2001 on the file of the Fast Track Court, Haven. Accused no.1 to accused no.11 were tried under Sections.143, 147, 148, 323, 324, 307, 504, 506 read with 149 of IPC. 2. The brief facts of the prosecution case is that accused nos.1, 4, 5 and 6 are the brothers and other accused are followers of accused no.1. Accused no.1 belongs to Janatadal party and is now In B.J.P. P.W.1 is the son of P.W11. P.W1, P.W.11 and others belong 4 to Congress political party. The accused, P.W.1, P.W. 11 and others are residents of Sudambi village In Byadagi Taluk withIn the jurisdiction of Kaginelli Police Station. There was a political enmity between the accused no.1 and P.W.1. There was also dispute as regards to the Sirachal tree, which was located in the backyard of P.W.1. 3. On 15.10.2000, at about 7.45 p.m., all the accused forming themselves into an unlawful assembly holding deadly weapons like iron rod, clubs, cycle chain and handful stones came near the house of P.W.12 — Ajjappa Gaddi, with an Intention to kill the complainant (P.W.1) and assaulted him. P.W.1- complainant has received the Injuries on his left fore arm, left shoulder, left upper-arm, right shoulder and all over the body. When P.W.4 and P.W.5 came to rescue of the P.W. 1, they were also assaulted with hands. Since, there was no Government Hospital at Sudambi village, on the next day morning I.e. on 16.10.2000 at about 8.45 a.m. P.W.1 went to the Kaginelil Police Station and filed a complaint before P.W. 14 who regIstered the case in Cr.No.48/2000 and sent the FIR to the J.M.F.C., Byadagi. P.WJ4 - PSI went to the spot, conducted spot panchanama as per Ex.P2, seized 2 chains, one club, one stone and 4 iron rods as M.O. 1. to MO.4 and recorded the statement of C.W.5, C.W.14 and C.W.17. Accused persons were arrested and they were released on bail. After collecting the wound certificate Ex.P4 to Ex.P6 from P.W.9 and on completion of the investigation, he filed the charge sheet. 3. The learned Sessions Judge framed the following charges; a) That you on 15.10.2000 at about 7.45 p.m. in front of Janata plot house of one Ajjappa in Sudambi Village, Taluka Byadgi were a member of unlawful assembly with common object to do away the life of complainant Prabhugouda Nanaganagouda Patil, on old grudge caused grievous injury to said complainant and thereby committed offence punishable under Section 143 of the IPC, and with the cognizance of this Court. b) That you on the above said date, time and place being member of unlawful assembly in furtherance of your said common object committed rioting and thereby committed an W 6 offence punishable under Section 147 of the IPC and within the cognizance of this Court. c) That you on the above said date, time and place being member of unlawful assembly in furtherance of your said common object committed rioting and at that time, you accused nos. 1, 5 were armed with iron rod, accused nos.2 ,7 were armed with sticks, accused Nos.3 and 4 were armed with cycle chains, accused No.6 was armed with stone, which are deadly weapons likely to cause death and thereby committed an offence punishable under Section 148 of the IPC • and within the cognizance of this Court. d) That you on the above said date, time and place being member of unlawful assembly in furtherance of your said common object, you accused No.1 Basavanthappa Ajjappali delivered blow on head of complainant, by means of iron rod, accused No.2 Basavanthappa Poojar delivered blow by means of stick on his head, accused No.3 Channabasappa assaulted by means of cycle chain on back, accused No.4 Suresh Fakirappa assaulted by cycle chain on left shoulder, accused No.5 Chandrappa assaulted by means of an iron rod on left upper arm, accused No.6 — Veeresh assaulted by means of stone on right shoulder and accused No.7 Ravindra assaulted by means of stick on his back, thus with - a 4 7 common object voluntarily caused Injuries to complainant Prabhugouda Path with an intention in such circumstance that if that act you had caused his death and you would have been guilty of murder and thereby committed an offence punishable under section 307 nw Section 149 of the IPC and within the cognizance of this Court. e) That you accused on the above said date, time and place being member of unlawful assembly In furtherance of your said common object, assaulted Cw.1 — Prabhu Gouda by means of Iron rod, stick, stone and cycle chain Indiscriminately and caused injuries all over his body and thereby committed an offence punishable under Section 324 nw SectIon 149 of the IPC and within the cognizance of this Court. f) That you accused on the above said date, time and place being member of unlawful assembly in furtherance of your said common object of said assembly, voluntarily caused simple Injuries by beating and kicking Cw4 — Suresh and Cw.5 — Mardansab Babusab when they Intervened in the incident and thereby committed an offence punishable under Section 323 nw SectIon 149 of the IPC and within the cognizance of this Court. g) That you accused on the above said date, time and place being member of unlawful assembly, in V 8 furtherance of your said common object of such assembly, intentionally insulted complainant — Prabhugouda Patil, Cw.4 — Suresh and Cw.5 — Mardanasab by abusing them In bad words, saying “ae&, 4cs %C and thereby gave provocation to them Intending or knowing it to be likely that such provocation will cause them Intending or knowing it to be likely that such provocation will cause them to break public peace and thereby committed an offence punishable under SectIon 504 nw Section 149 of the IPC and within the cognizance of the Court. h) That you on the above said date, time and place being member of unlawful assembly In furtherance of your common object of such assembly, threatened life of complainant with dire consequences Intent to give alarm, thereby committed an offence punishable under Section 504 nw Section 149 of the IPC and within the cognizance of this Court. All the accused pleaded not guilty and claim to be tried. 4. In order to prove the charges, the prosecution has examined P.W.1 to P.W.14 and marked Ex.P1 to Ex.P9 and also marked M.O.1 to ‘.1 I 9 M.O.4 namely, two broken cycle chain as M.O.1, two iron rods as M.O.2, one hand full stone as M.O.3, two wooden clubs as M.O.4. The Trial Court acquitted all the accused holding that the prosecution has failed to prove the charges beyond reasonable doubt. The prosecution has failed to establish the motive and there are material contradictions in the evidence of P.W.1, P.W.4 and P.W.5. There was enmity between the accused and P.W.1, P.W.4 and P.W.5, who are the injured witnesses. Immediately, after the incident, the injured were not shifted to the hospital and there was a delay in filing the FIR. The complaint was registered on 16.10.2000, at 8.30 p.m.. Evidence of P.W. 1 is re-iteration of the FIR and the delay of 24 hours in lodging the FIR, which has resulted in delIberation, concoction and forming opinion and accordingly it acquitted the accused. 5. Against the judgment of the acquittal, the State is in appeal. 6. We have heard the AddI. State Public Prosecutor on behaif of the State and Sri. S.N. Shat, 4 10 learned counsel appearing for accused no.1 to accused 4 and accused nos.6 to 11. 7. P.W.1, P.W.4 and P.W.5 are the injured witnesses. P.W.1 Is also complainant, P.W.2 and P.W.3 are witnesses to the seizure mahazar - Ex.P2. P.W.6, P.W.7, PW.8 and P.W.1Q are the eyewitnesses. P.W.9 Is a medical officer, P.W.11 Is father of P.W.1. P.W.12 speaks about the motive. P.W.13 is a sweeper and streetlight operator. P.W.14 Is the investigating officer. 8. From amongst these witnesses, P.W.1, P.W.4 and P.W.5 are the injured witnesses. P.W.6, P.W.7, P.W.8 and P.W.1O are the eye-witnesses. Though P.W.5 is treated as hostile, but in the examination-in- chief as well as in the cross-examination, he supports the case of the prosecution. P.W. 1 in his evidence has stated that about one month prior to the Incident, there was an election to the Milk Producers’ Federation. In the said election, he was elected as a • member to the said union and was elected as a President. There was also dispute between the II accused no.1 and P.W.l’s family for the last 5-6 years In relation to sirachal tree. On 15.10.2000, at about 7.45 p.m., P.W.1 had gone to Janatadal Plot to secure the agricultural labours. When he was near the house of P.W.12 — Ajjappa Gaddi, on account of political rivalry, accused no.1 came and tried to assault him on his head. However, he escaped the blow, but blow fell on his left hand elbow. Accused no.2 assaulted with the club on his head, accused no.3 assaulted with the cycle chain on his back, accused no.4 assaulted with cycle chain on his right cheek, acëused no.5 assaulted with an iron rod on his back, accused no.6 assaulted with stone on the back, accused no.7 assaulted with a club on his back, accused nos.8 to 11 assaulted with hand and kicked him with legs. At that time, P.W..4 and P.W.5 came to the rescue of P.W.1 and they were also assaulted. Thereafter, C.W.6, C.W.7 and C.w.8 came to the place of IncIdent. Thern accused left the weapons and ran away. Since there was no vehicle facility on that day, P.W.1 did not lodge a complaint immediately. On the next day morning, he went to Kaginelll police station and lodged a complaint r 4 12 and thereafter, he was treated by P.W.9 — doctor, who issued Ex.P4 — wound certificate. In the cross- examination, he has stated that there is no Government Hospital in his village, as no doctor was available during night, as his motor cycle and tractor were also under repair, as he was not in the habit of asking the vehicle from others, he could not go to police station Immediately and he went to the police station on the next day morning at about 8.30 p.m., and lodged a complaint. He admitted that his father was a freedom fighter and was a Congress man. P.W.1 also belongs to the Congress party and accused belongs to Janatadal party. Whenever elections take place, there use to be frequent fights between Congress party and opposite party. However, no criminal cases were regIstered. He has stated that his father used to resolve small disputes In the village and has also admitted that he was elected as President to the Milk Producers’ Federation. The accused had not contested the election and some of the accused also supply milk to the Milk Producers Federation. In the cross-examination he has also 13 described the overt acts of the accused. P.W.4 — another Injured witness has stated that at about 7.30 p.m. on 15.10.2000, when he went to Janatadal Plot to get agricultural labours, he saw P.W.1 who was assaulting by accused persons and they were shouting stating that they would finish him (P.W.1). They were holding Iron rod, cycle chain, club and stone. When P.W. 4 went to rescue of P.W.1, he was also assaulted and sustained bleeding injuries on the ear. However, in the cross-examination, he has stated that he does not know as to which accused assaulted P.W.1 on his person. P.W.5 — another injured witness has stated In the cross-examination that at about 7.30 p.m., on 15.10.2000, while he was returning from coolle work, he saw the incident. Accused were assaulting P.W.1 holding iron rod, cycle chains, clubs and stone. When he went to the rescue of P.W.1, they abused him In a filthy language and assaulted him on his left elbow. Though, Initially he was treated as hostile, he had denied as regards the dispute between P.W.1 and accused no.1 with regard to sirachal tree and that the accused assaulted P.W.1. 14 However, in the cross-examination, he has stated that he had seen accused assaulting P.W.1 on the right shoulder. Accused no.2 had also assaulted. Accused no.3 assaulted with chain and PWJ suffered bleeding injuries. He has stated that, he had seen this incident in the street light. P.W.6, P.W.7, PW.8 and P.W.1O have been treated as hostile. P.W.6 has stated that, when he had gone to Janatadal plot to get medicine from the veterinary doctor for his cow, he saw the accused persons assaulting P.W.1 in front of the house of P.WJ2-Ajjappa Gaddad. P.W.4, P.W.5 and P.W.7 also came to pacify the quarrel. On seeing people gathering at the spot, accused ran away. P.W7 has stated that PWJ was elected as a President and there is a dispute between accused noJ and P.WJ. as regards the Sirachal tree, While he was returning from the lands, he saw the accused persons assaulting P.W. 1 by holding club, rod, chain and stone. P.W4 and P.W.5 who came to the rescue of PW.1, they were also assaulted. PW.8 has stated that when he was going towards his brother’s house, near the house of PW12 Ajjappa Gaddad, he saw 15 the accused persons assaulting P.W. 1 by holding cycle chain, club, rod and stone. P.W.4 and P.W.5 who came to rescue of P.W.1 were also assaulted. P.W.10 has also stated that he had seen the Incident at 7.30 p.m., near the house of P.W.12. 9. No doubt, there are discrepancies in the evidence of P.W.6, P.W.7, P.W.8 and P.W.10, but P.W.1, P.W.4 and P.W.5 are the injured witnesses have supported the prosecution case. Their evidence is also supported by P.W.14, the investigating officer, who has stated that P.W.1 came to the police station at 8.15 p.m. on 16.10.2000 and gave a complaint — Ex.P1, which was registered in Crime No. 48/2000. P.W.14 has stated that he sent P.W.1 to the Government Hospital. P.W.9 Is the medical officer has stated that he Is working in Primary Health Centre at Kaginelli. On 16.10.2000, at about 8.30 a.m., P.W.1 came to the hospital and on examination he found imprint abrasions of assault by the cycle chain and other three Injuries on the left elbow, right shoulder, and on the cheek. P.W. 1 stated that he had suffered — Injuries on the left ear and he issued Ex.P5 — wound — 16 certificate. Similarly P.W.4 and P.W.5 were also examined and accordingly, he issued Ex.P5 and Ex.P6. P.W.9 has stated that all the injuries are simple in nature, which might have caused by chain, rod, club or stone. In the cross-examination, he has stated that such Injuries are possible, if a person comes In contact with the rough surface. 10. Even consIdering the evidence of P.W.6, P.W.7, P.W.8 and P.W.9, who are the interested witnesses may be belonging to the Group of P.W.1. The evidence of P.W.12, P.W.14, who registered the case and sent P.W.4 and P.W.5 to the hospital and the evidence of P.W.9 — doctor and corresponding documents Ex.P4, Ex.P5 and Ex.P6 — wound certificates Issued to P.W.1, P.W.4 and P.W.5 have supported the prosecution case. There is consistency in the evidence of P.W.1 and P.W.5 as regards the overt acts also. No doubt, P.W.4 has stated as regards the overt acts, but Ex.P5 shows that he has suffered bleeding injuries on the left ear. 17 11. When the prosecution has adduced evidence of the injured witnesses, there must be strong circumstances to disbelieve the same. The Trial Court has disbelieved the prosecution case on a wrong assumption that the complaint was flied after 24 hours of the Incident, which factually is Incorrect. Actually, the incident has taken place at 7.30 p.m. to 7.45 p.m., on 15.10.2000 and the complaint was registered at 8.15 a.m., on 16.10.2000. The police station is at 12 k.ms. from the place of incident and FIR has reached at 12.45 a.m. on the same day. It has come in the evidence of P.W. 1 that there was no vehicle facility on the date of incident. No doctor was available during night and his vehicles namely cycle and tractor were also not in order. If this evidence is considered, we do not find that there Is any delay, as the incident has taken place In the previous night and on the next day morning P.W.1, P.W.4 and P.W.5 have reached police station and filed the complaint. It has come In the evidence that accused no.1 belongs to one political party, P.W.1 belongs to another political party. May be there Is rivalry In the village. j 18 Apart from this, there is also dispute between the family of P,W1 and accused noJ, which is pending for the last 4-5 years in relation to a tree. It has been stated that in the elections held to the Milk Producers Federation, PWi has been elected as president. 12, The learned Trial Judge has referred to the evidence of PW1, PW4, PW,5 and other witnesses and also observed that there is rivalry but observed that there was no motIve for the accused to assault PWl, PW4 and PW5. PW,1 has categorically stated that there is rivalry between his family and accused no1’s family. In the crossexamination of PW1, a suggestion was made that PW1 belongs to one political party and accused no.1 belongs to another party and there is a rivalry. From the evidence, it is clear that there is a motive for the accused to pick up a quarrel with PW,1. There is no inconsistency as regards the injury suffered by PEW. I as well as the evidence of PW9 and ExP4, P,W,1 in his evidence has stated the injuries suffered by him and the overt acts of the accused. The assault by accused no 1, accused no 3 and accueed no 4 I ) corresponds with the injuries mentioned in the wound certificate issued by P.W,9. Similarly, the injuries suffered by P,W,4 also corresponds with Ex.P5 wound certificate issued by P.W.9 and the wound certificate Ex.P6 issued by P.W.9 corresponds with the injury suffered by P.W.5. P.W.5 has also stated the overt acts against the accused. 13. No doubt, the evidence led by the prosecution do not prove the offence of formation of unlawful assembly holding deadly weapons against all the accused, as P.W.1 himself has stated that accused no.8 to accused no.11 were not holding any weapons. P.W.4, who is also injured witness has not stated the individual overt act. i.e., as to who assaulted RW.1. P,W,4 only refers to the assault, P.W.5 has suffered one injury, which is referable to accused no.1. The evidence of P.W.1, P.W.4 and P,W.5, who are injured witnesses and their evidence is reliable. It shows that P.W.1 was assaulted by accused no.3 and accused no.4, who were hotding cycle chains and the corresponding injuries were stated by doctor — P.W.9 in Ex.P4 are sirn pie in nature. However, in regard to IA 1 q 20 the assault by accused no.1 on the head, we do not find corresponding injuries on the person of P.W.1. So far as the abrasion on the left arm just above the elbow on its outer side measurIng 1 x 0.3 cm, red In colour, contusions on the top of right shoulder, outer angle of left jaw are referable to the assault by accused no.1. There is consistency In the evidence of P.W.1, P.W.9 and Ex.P4 as regards the overt acts by accused no.1, accused no.3 and accused no.4. Though P.W.4 has suffered one Injury, which Is stated by P.W.9 and also referred In Ex.P5, he had not referred to any overt acts. But, P.W.5 has suffered one Injury and the doctor has also stated that it is an injury to the fore arm at the junction of mid and lower third measuring 1 cm x 0.3 cm which corresponds with the Injury mentioned in Ex.P6. 14. When the prosecution has led the evidence of Injured witnesses, which is corroborated by the evidence of eye witnesses namely, P.W.6, P.W.7, P.W.8 and P.W.10, all the witnesses have stated that there Is enmity between the family of P.Ws.6, 7, 8 and 10. The motive is clearly established. Apart from this, — I — I 21 even it Is the case of the accused that there Is a political rivalry, the learned Trial Judge has also found that there is enmity between two groups still holds that there is no motive. Hence, the finding of the Trial Court Is perverse and contrary to the evidence on record. 15. So far as the delay is concerned, the evidence of P.W.1 is clear and cogent. He has explained the delay and the complaint has been filed at the earliest possible time. The inconsistency stated by the Trial Court is also contrary to the evidence more particularly, when the Injured witnesses have been examined. It Is not expected that the Injured have to say about the accurate overt acts and accurate weapon used by each accused. In this case, P.W.1 and P.W.5 have also stated the overt acts and corresponding InjurIes. In our opinion, the prosecutIon has established that accused not, accused no.3 and accused no.4 have assaulted P.W.1, P.W.4 and P.W.5. May be there Is exaggeration of inclusion of other accused In the crime. That may be on account of local polItical rivalry. We do not find any evidence as 22 regards the formation of unlawful assembly holding deadly weapons by all the accused to attract the provisions of Section 143, 147 and 148 of the IPC. Further, P.W.9 has stated that all the injuries suffered by P.W.1, P.W.4 and P.W.5 are simple in nature. No doubt witnesses have stated that such injuries would be caused by weapons like M.O.1 to M.O.4. If really the accused Intended to kill P.W.1, they could have assaulted on the head or vital part of P.W.1 with the iron rod, but no corresponding injuries are found and even the injuries stated in the wound certificate are not grievous in nature. In the circumstances, the charges for the offence