I IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 17TH DAY OF MARCH2011 PRESENT THE HON’BLE MR. JUSTICE SUBHASH B. ADI AND THE HON’BLE MR. JUSTICE N. ANANDA CRIMINAL APPEAL No.1925/2005 BETWEEN: The State of Karnataka By Kundagol Police Station, .Appellant (By Sri PHGotkhindi, HCGP) AND: 1. Basappa 1 Basavarak Honnappa Pujar 2. Shivamurteppa Shivappa S/o. Sri Honnappa Pujar 3. Chandru Chandrappa S/u. Sri Bhimanna Pujar All are r/o. Rattigeri Think: Kundagol. . Respondents (By Sn Basavaraj M,Mekki, Advocate (Absent)) This appeal is filed under section 378(1) and (3) of the Code of Criminal Procedure, by the State Public Prosecutor for the State to grant leave to file an appeal against the judgment and order of acquittal dated 10.06.2005. paasecl 1w the I Additinn1 Sesinn Judge at Dharwad, sitting at Hubli, in S.C.No.81/2004, acquitting the respondents/accused for offenc’es punishable under sections 341,504, 506 & 302 r/w 34 IPC This appeal conimg on for final hearing this day Subhash B Adi I , delivered the following. 2 DGMENT This is a State appeal against the judgment of acquittal in S.C,No,S1/2004 dated 1O062005, on the file of I Additional Sessions Judge at Dharwaci 2. Accused No, 1-Basappa (w Basavarak Honnappa Pujar, accused No.2-Shivamurteppa Shivappa and accused No,3 Chandru (i Chandrappa were tried for offences punishable under 341, 504, 506 & 302 nw 34 IPC. 3. The brief case of the prosecution is that accused 1 & 2 are the brothers, accused No,3 is the cousin brother of accused I & 2 PWI-Bayamma is the mother of deceased Mallikaijunagouda and PW20Ninganagouda. PW8- Putragouda and PWI6-Annapurna are the grand children of PW 1. There was partition between PW2O and the deceased and each of them had got 18 acres of land. The deceased had agreed to sell his four acres of land to PW22-Mallikazjun Hundekar. Accused No, 1Bssappa i Rasavrk Honnappa Pujar had mediated the transaction Since the deceased had not executed the sale deed even after receiving complete 3 money and tried to alienate the land to some other person, on 09.02.2004 at about 2.30 p.m., when the deceased was proceeding near the house of Fakirappa Magadi at Rattigeri ViIIge, accused 1 to 3 stopped the deceased to enquire as to why the deceased is not executing the sale deed even after receiving the complete money. Accused 1 to 3 picked up quarrel and grappled the deceased. Accused No.1 was holding an axe (M.O.8), accused No.2 was holding an iron rod (M.O.9) and accused No.3 was holding a knife (M.O.10). Accused No.1 assaulted with an axe on the head, above left eye and also on both the knees of the deceased. Accused No.2 assaulted the deceased with an iron rod on his head and on both his hands and accused No.3 caused injury to the head and face of the deceased with a knife. At that time, PW7-Mahadevappa, who was proceeding towards Basaveshwar Temple to sleep, saw accused 1 to 3 grappling and assaulting the deceased. PW7 tried to rescue the deceased. However, accused 1 to 3 ran away from that place. At that time, PW1 came to that place and poured water in the mouth of the deceased. PW7 informed PW1 about the 4 incident. The deceased was shifted to KIMS Hospital at Hubli, however deceased died at the hospital on 15O22004. PW2 1 Nagendra, the then Police Head Constable of Gudageri Out Post informed PW26K. D. Puttaiah, Police Sub4nspector of Kundgol Police Station that the deceased had sustined injuries in a scuffle and the deceased was taken to the hospital. PW26 went to the hospital at 5J5 on the date of the incident. Since the deceased was not in a position to give statement, PW26 recorded ffie statement of PW1 Bayamma, the mother of the deceased as per ExP. 1 and registered a case for offences punishable under sections 341,504, 506 & 307 nw 34 IPC and sent the first information report to the jurisdictional Magistrate. On getting information of the death of the deceased, PW26 went to the hospital, conducted inquest panchnama and sent dead body to the postmortem examination and collected postmortem examination report from the doctor and recorded the statements of witnesses and arrested the accused and recorded the voluntary statement, after securing the panchas at the instance of the accused an..d in the presence of panchas. PW26 recovered M.O.8 to M.O. 10 respectively. After completion of investigation. PW26 filed the charge sheet. 4. On committal, the learned Sessions Judge secured presence of the accused and framed the following charges: “That you. the above named accused on 9/2/2004 at about 14.30 hours, near the house of Fakirappa Magadi at Rattigeri Village, within the jurisdiction of Kundgol Police Station, with the common object of assaulting and murdering Mallikarjungouda, the son of the complainant Smt. Bavamma wrongfully restrained deceased Mallikarjunagouda and thereby committed an offence punishable u/sec. 341 r/w 34 IPC. 2. That you the above named accused, at the aforesaid time, date and place intentionally insulted and abused deceased Mallikarjunagouda, in vulgar words with intent to provoke the deceased intending thereby to cause breach of public peace and thereby committed an offence punishable under section 504 R/w. 34 of LP.C. and within my cognizance. 3. That you the above named accused, at the aforesaid time. date and place committed 6 criminal intimidation by threatening deceased Mallikarjunagouda to take away his life with injury to his person with intent to cause alarm to the deceased Mallikarjunagouda and thereby committed an offence punishable u/Sec. 506 R/w. 34 of l.P.C. and within my cognizance. 4. That you, aH the above named accused, at the aforesaid time, date and place with the common object of murdering deceased Mallikarjungouda, you accused No. 1 assaulted deceased Mallikarjunagouda with the axe on his head, above his left eye and also to his both knees causing injuries, you accused No.2 assaulted the deceased with iron rod on his head and to his both hands and you accused No.3 caused injury to the head and face of the deceased by piercing with a knife and you all the accused did commit murder by intentionally causing the death of the deceased Mallikarjunagouda and thereby committed an offence punishable u/Sec302 R/w. 34 of I.PC” 5. On the accused pleading not guilty and claimed to be tried, the trial was conducted, The prosecution examined PW1 to PW27 and marked the documents as Ex.P,l to 7 ExP33. In the crossexamination of PW7 and PW8, portion of their statements made before the police under section 161 of CrPC,, was marked as ExD. 1 and D2. The material objects were marked as MO. 1 to MO. 10. 6. The trial court on appreciation of evidence acquitted the accused, observing that PW7Mahadevappa is an independent witness and in his crossexamination has admitted that he has impairment of hearing and his eyesight is also impaired, he is not able to see the objects beyond 10 to 15 feet and also admitted that the deceased was running towards the Basaveshwara Temple severely bleeding and he was lying at a distance of 25 to 30 feet from the temple from backside. Whereas the prosecution case was that the deceased was lying near the water tank which is away from the Basaveshwara Temple. PW7 also admitted that there were two groups in the village and he belongs to the group of accused, PW7 ha...s further admitted that he used to take food and shelter in the house of the deceased. For these admissions the credibility of his evidence was disbelieved. 8 7. PW1-Bayamma, the mother of deceased, PW8- Putragouda, the grand son of PW1 and PW16-Annapurna, the grand daughter of PW1, have stated that they also witnessed the incident The evidence of PW1, PW8 & PW16 is also disbelieved by the trial court on the ground that there are material contradictions in their evidence. PW2O, the brother of the deceased has not stated that he saw the incident PW2O has stated that he had visited the place of incident after the occurrence. Except PW1, PW7, PW8, PW16, PW2O & PW26 and the Medical Officer are the witnesses who supported the case of the prosecution, the other two eyewitnesses namely PW9 & PW1O have turned hostile and nothing has been elicited in their cross- examination. The trial court has further observed that the credibility of the evidence of PW9-Faldrappa & PW1O- Sureshappa is doubtful as to whether they were present at the time of incident and accordingly, on these findings the learned trial Judge has acquitted the accused. As gnirist the impugned judgment, the State has filed this appeal. 9 8. We have heard Sri P.H.Gotkhindi, learned HCGP for the State. Though the accused are represented by the learned counsel, however, the learned counsel has remained absent. In view of the judgment of the Supreme Court, reported in 2008 AIR SCW 357 (in the case of Dharampal & Others Vs. State of Uttar Pradesh,I, we have perused the entire records and taken the appeal for disposal on merits. 9. The entire prosecution case is based on the evidence of PW1, PW7, PW8, PW16 & PW2O. PW7, who supported the prosecution case. PW 1-Bayainma, the mother of the deceased has stated that at about 2 p.m., the deceased had been to the water tank near Basaveshwara Temple. PW7- Mahadevappa informed her that, accused 1 to 3 are assaulting the deceased. PW1 along with PW8 & PW16 went to the spot The deceased was lying near the water tank near the house of Fakkirappa Magadi. Whereas PW7 in his evidence has stated that in the afternoon on the date of incident he was going towards Basaveshwara Temple to sleep, he saw the accused grappling and assaulting the 10 deceased, that accused No.1 assaulted the deceased with the axe; accused No.2 was holding an iron rod and assaulted the deceased with the same and accused No.3 stabbed with a knife on the neck of the deceased. When PW7 went to rescue the deceased, the accused ran away from the place of incident, In the meanwhile, PW1 came to the spot and PW7 narrated the incident to PW 1. PW7 does not refer that he had informed PW1 in turn states that PW1 came to the spot and he narrated the incident to her. 10. PW7 in the crossexamination, apart from admitting that he has hearing problem and he cannot also see the objects clearly, beyond a distance of 10 to 15 feet, has admitted that there are two groups in the village i.e., one group belongs to the accused and another group belongs to the deceased and he belongs to the group of the deceased, and has further admitted that he used to take food and shelter in the house of the deceased. To a question as to the place of occurrence, PW7 states that the deceased was lying at a distance of 25 to 30 feet behind the Basaveshwara Temple. The case. of the prosecution is that the deceased was I I 11 lying near the water tank near the house of Fakkirappa Magadi (PW9). Though the incident had taken place just opposite to the house of PW9, PW9 has not supported the case of the prosecution. On one hand PW7 states that he saw deceased running towards the temple with bleeding injuries, on the other hand he states that he saw the accused assaulting the deceased. His evidence creates doubt as to whether he has seen the incident. 11. PW8-Putragouda & PW16-Annapurna are the grand children of PW1. PW8-Putragouda has stated that on the date of incident at about 2 p.m., he was sitting on the katte of Basaveshwara Temple and he saw the accused forcibly stopping and abusing the deceased near the house of Fakldrappa Magadi. Accused No.1 assaulted the deceased with an axe on his head, legs and hands. Accused No.2 assaulted the deceased with an iron rod on his body and left eye and accused No.3 stabbed the deceased with a knife. At the time of incident, PW7 & PW9 were present. 12 12. However, in the cross-examination at paragraph 6, PW8 has stated that when he was in the house with PW1, they received information that the deceased was lying near the house of PW9-Fakkirappa Magadi. Then .PW 1 & PW8 went there. Then the police came to the spot at about 2.05 or 2.10 p.m. Further at paragraph 7, PW8 states that accused No.1 only assaulted the deceased before deceased fell down. Further, accused No.2 did not assault the deceased on his head. Similarly, accused No.3 did not stab on the head of the deceased and admitted that he has not given the statement before the Police, which is marked as per Ex.D.2. 13. PW16-Annapurna is the granddaughter of PW1. In her evidence, PW16 has stated that PW8 was sitting on the ‘katta’ of the temple; PW8 caine and informed PW16 about galata near the house of accused No.1. Thereafter, PWI6 & PW8 went towards the house of accused No.1 and found all the accused assaulting the deceased, however PW8 has not stated that he went and informed PW16 about the incident. 13 14. In the cross-examination, PW16 has stated that she and PW8 went to the spot where the villagers had assembled. PW16 has further stated that her mother wanted to give her in marriage to the deceased and she has refused to many him. PW16 has denied suggestion that the wife of the deceased had deserted him. 15. PW1-Bayamma is the complainant. The statement of PW1 is recorded by PW26-K.D.Puttaiah as per Ex.P.1. PW8 & PW16 are none other than the grandchildren of PW1. If PW8 had really seen the accused assaulting the deceased, he could have rushed to the house and informed some body. PWI in the complaint at Ex.P. 1 has not made reference of the presence of PW8 & PW16 near the place of occurrence. PW1 has stated that, PW2O-Ninganagouda was also present when the deceased was shifted to the hospital. The statement of the complainant is recorded in the hospital. By the time, the deceased was taken to the hospital, PW8, PW16 & PW2O were present, but no reference was made in the complaint regarding their presence. The prosecution has also not brought on record as to the distance between the housej!L S 14 of PW 1 and the place of incident. PW 1 after receiving the information rushed to the place of incident. The material witnesses such as PW6, PW8 & PW16 were vital to the case of prosecution and their evidence is not clear as to whether they were really present on the spot and witnessed the incident. No doubt, the incident had taken place around 2.30 p.m., in the village. However, in the evidence of PW1, PW7, PW8 and PW16 who claims to be the eyewitnesses, there is material contradiction, particularly as to their presence at the place of incident. PW.7 has not stated that he went to the house of PW1 and informed, whereas PW1 states that PW7 came and informed. PW7 states that the deceased was lying 25’ to 30’ behind the temple where the place of incident is near the water tank. PW7 has stated that he saw deceased running towards the temple and he was bleeding that means the deceased was already assaulted. 16. PW1 comes after she was informed about the incident, but her evidence is doubtful as to her presence at the scene of occurrence. Evidence of PW8 and PW16 also does not corroborate with evidence of PW 1 apart from the material 15 contradiction. When the prosecution has failed to bring back the guilt of the accused, the trial court on appreciation of the evidence has acquitted the accused. Though the incident has taken place in the daylight and in the midst of village and the prosecution case is that several persons witnessed the incident, However, other witnesses have not supported the case of the prosecution. The prosecution has failed to prove the charges beyond reasonable doubt. Though the evidence of PW1 shows that PW2O brother of the deceased came to thern place of incident, however, PW2O only speaks of going to the hospital and does not speak of going to the place of incident or the motive. It is in these circumstances, the trial court on appreciation of evidence has found that the prosecution has failed to prove the charge beyond reasonable doubt. 17. Even on reappreciation of the entire evidence, we do not find any reason to interfere with the judgment of acquittal as the findings of the learned trial Judge are based on proper appreciation of evidence of material witnesses. NNS 3saflf -‘Ps :it passwsip ! ames ‘(2mpJO33e pun snj maddu aqj ‘aauaH 9T 91