. .c. IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 01ST DAY OF APRIL2011 PRESENT THE HON’BLE MR. JUSTICE SUBHASH B. ADI AND THE HON’BLE MR. JUSTICE N. ANANDA NAL APPEAL No5O3 2006 BETWEEN: State of Karnataka By Circle Inspector Hunagund (Hunagund Police Station) Appe1lant (By ShrLBahubali A. Danawade, HCGP) AND: 1. Laxman, S/o. Ramanna Nigari, Aged 28 years, 0cc: Agriculture, R/o. Bommanagi, Now residing at Ganjihal. 2. Ravindra, S/o. Ra.rnanna Nigari, Aged 26 years, 0cc: Agriculture, R/o. Bommanagi, Now residing at Gs.rjihal. C 2 3. Mudiyappa, S/o. Parasappa Kuri, Aged 38 years, 0cc: Agriculture, R/o. Ganjihal. 4. Yallappa, S/o. Parasappa Kuri, Aged 38 years, 0cc: Agriculture, RIo. Ganjihal. 5. Lakkappa, Sb. Parasappa Kuri, Aged 23 years, 0cc: Agriculture, R/o. Ganjihal. 6. Muttappa, Sb. Amateppa Ghanti, Aged 22 years, 0cc: Agriculture, Rio. Ganjihal. 7. Irappa, Sb. Mudiyappa Kin-i, Aged 58 years, 0cc: Agriculture, Rio. Ganjihal. 8. Satteppa, Sb. Amateppa Ghanti, Aged 33 years, 0cc: Agriculture, R/o. Ganjihal. 4- 3 9. Hullappa, 5/0. Chandappa Kuri, Aged 33 years, 0cc: Agriculture, R/o. Ganjihal. 10. Basappa, 5/ Parasappa Kuri, Aged 25 yeas, 0cc: Agriculture, Rio. Ganjihal. . . .Respondents (By Shri.Sharanappa Mattur, Advocate (absent)) This criminal appeal is filed under Section 378(1) and (3) of the Code of Criminal Procedure, by the State Public Prosecutor for the State, praying to grant leave to file an appeal against the judgment dated 22.12.2005 passed by the Sessions Judge, Bagalkot, in S.C.No.6/2003, acquitting the respondents - accused for offences punishable under sections 143, 147, 148, 302, 323, 504 read with section 149 of the Indian Penal Code. This criminal appeal coming on for final hearing this day, Subhash B. Adi J., delivered the following: & 4 JUDGMENT This appeal is by the State against the judgment of acquittal in S.C.No.6/2003 dated 22.12.2005, on the file of the Sessions Judge, Bagaikot. 2. Accused 1 to 10 were tried for offences punishable under sections 143, 147, 148, 302, 323, 504 read with section 149 of the Indian Penal Code. 3. Accused 3 to 5 and 10 are the brothers. Accused No.6 is brother’s son of accused No.3. Accused No.8 is the brother of accused No.6. Accused No.9 is the cousin of accused No.3. Accused No.7 is the uncle of accused No.3. Accused 1 and 2 were the natives of Bornmanagi village. The other accused were the natives of Ganjihal village. 4. PW3 - is the mother of PW1 — complainant. PW7 - Sangappa, is the uncle of PW1. PW4 is the wife of PW7. PW1, PW3, PW4 and PW7 were the residents of Qanjihal village. PW2, PW5, PW6 and deceased Anneppa were the N residents of Bommanagi village. PW2 has got a land, adjacent to the land of accused No. 1, situate within the limits of Bommanagi village near Ganjihal vfllage limits. About two months prior to the date of incident, PW2 had cut babul tree standing in his land and kept the cut wood pieces in his land. Thereafter, the log of babul tree, which was kept in his land, was missing. PW2 suspected accused No.1 Laxman has taken the said babul log. When he enquired accused No.1, he denied the same, In this connection, PW2 went to the house of PW7 and informed that the accused had taken the babul log. PW7 informed PW2 that he would request the elderly persons to enquire the same. On 26.02.2002, PW2 — Yalagurdappa Sangappa Nigari, one Suregouda, deceased Anneppa, Yallanagouda went to Ganjihal village, as PW7 - Sangappa Yamanappa Mudar had told them to come there. PW7 went and called accused 1 to 10, informing them that the elderly persons from Bommanagi village have come. Accused No.7 — Irappa abused PW7, questioning as to what enquiry they would F— 6 conduct and assaulted PW7 with club on his head, due to which PW7 sustained bleeding injury on his head. Accused No.5 - Lakkappa also assaulted with a stick on his left leg. On account of the blows, PW7 fell down. The deceased intervened to separate accused and PW7 — Sangappa. At that time, accused No.1 - Laxman assaulted the deceased Anneppa with a stick (fire wood) on his head and the deceased suffered bleeding injury. Accused No.2 also assaulted the deceased Anneppa with a stick on his face, due to which the blood was oozing from the nostril and the mouth of the deceased Anneppa. Yamanappa, the brother of PW1 also intervened to separate accused No.3 — Mudiyappa. Accused No.3 assaulted Yamanappa on his head. Accused No.4 also assaulted Yamanappa. When PW2 tried to intervene, accused No.9 assaulted PW2. PW3 Ningawwa, who also came to the rescue, accused No.8 — Satteppa assaulted her with a stone. When PW1 intervened, accused No.10 — Basappa, assaulted him with a stick. Accused No.6 - Muttappa, assaulted.with a 7 the hands. Though number of persons had gathered near the spot, however, none of them tried to separate the accused assaulting PW2 and others. One Halleppa came to the spot, advised the accused and sent them from the spot. The other elderly persons, who were near the spot also left the place. By that time, the Police came to the spot and took PW7 and other injured persons to Hungund Hospital. The deceased Anneppa was sent to the Government District Hospital at Bagalkot. The Police came to the hospital at Hungund and recorded the statement of PW7, as per Ex.P1. The deceased Anneppa, who was admitted to the Bagalkot hospital died. PW18, registered a case in Crime No.38/2002 and sent the First Information Report as per Ex.P.1O to the J.M.F.C., Hungund. On the same day, PW18 recorded the statements of Yamanappa, PW1 - Andaneppa, PW2 - Yalagurdappa, PW3 - Ningawwa, PW4 - Shivawwa, Yallappa and Andaneppa. PW18 conducted spot panchanama as per Ex.P.2 and seized 8 sticks as per MOl to MO8 and a stone M09. PW18 4-’ 8 received a message from the District Hospital, Bagalkot that the deceased Anneppa died. PW18 sent a letter to the J.M.F.C., Hungund for insertion of an offence punishable under section 302 of the l.P.C. PW18 conducted inquest panchanama on the body of Anneppa and sent the dead body to the postmortem for examination. PW19 - Datta Appasab Suryavanshi, continued further investigation. PW14 — Doctor Somalingappa Vikram, conducted postmortem examination on the dead body of Anneppa and noticed the following two injuries: - “1) Lacerated wound on right parietal region measuring 3” x ¼” to the brain depth. Blood clot is present. Below the wound, there is depressed fracture of right parietal bone. Below the fracture about 100 — l5Oml. blood clot is present. There is extra dural haemorrhage. Some blood clots are present on brain. 9 2) Left eye bowl is swollen and bluish black on examination, Seclera conjuctural. junction is teared.” and stated that the death might have occurred 12 to 15 hours before the postmortem examination, PW14 has stated that injury stated in Ex.P8 could be caused with MOl to M08. PW14 gave his opinion as per Ex,P,9, 4. PW19 - Datta Appasab Suryavanshi, on completion of the investigation filed the charge sheet. 5. The learned Sessions Judge, securing the presence of the accused, framed the following charges including an offence punishable under section 143 of the Indian Penal Code: “That you on 26-02-2002 at about 3-30 p.m. in front of the house of complainant Sangappa at Ganjihal Village were members of an unlawful assembly and in prosecution of common object of such assembh: viz., in assaulting the complainant: Sangappa and his brother deceased: Anneppa and thereby 11 k 1 0 committed an offence punishable U/sec. 147 of Indian Penal Code and within the cognizance of this court. 2. That you on the above said date. time and place were members of an unlawful assembly and did in prosecution of common object of such assembly viz., in assaulting complainant: Sangappa and his brother Anneppa with sticks and thereby committed the offence of rioting and at that time you were armed with deadly weapons like, stick and thereby committed an offence punishable U/sec.148 of Indian Penal Code and within the cognizance of this court. 3. That you on the above said date, time and place in prosecution of common object of unlawful assembly with intent to commit the murder of Anneppa Nigari you accused No. I Laxman and accused No.2 Ravindra assaulted said Anneppa with stick on his head and face and caused injury, due to which said Anneppa succumbed to the said injuries on 27O22. 002 and thereby cornmitted an offence punishable U/sec302 I II R/w 8.149 of Indian Penal Code and within the cognizance of this court. 4. That you on the above said date, time and place in prosecution of common object of unlawful assembly voluntarily caused hurt to CW. 1. Sangappa, CW. 10 Andanappa, CW. 11 Yamanappa, CW. 12 Yalgurdappa and CW. 13 Ningawwa by assaulting with hands, sticks and stones and thereby committed an offence punishable U/sec.323 R/w S. 149 of Indian Penal Code and within the cognizance of this court. 5. That you on the above said date, time and place intentionally insulted and thereby gave provocation to complainant Sangappa by abusing him as “b... intending that such provocation would cause the said complainant: Sangappa to break public peace and thereby committed an offence punishable U/sec.504 R/w S.149 of Indian Penal Code and within the cognizance of this court.” 4 12 6. The prosecution in order to prove the charges examined PW1 to PW21 and marked Ex.P. 1 to Ex.P.24. From the statement of PW1 made before the Police under section 161 of the Code of Criminal Procedure, portion of which is marked as Ex.D1. MOl to M08 - sticks, M09 - stone, MOlO - sari, MOll - shirt, M012 - mundichati, M013 - underwear, M014 - dhoti, M015 and M016 - mundichati, M017 - banian and M018 - polyester shin were produced and marked. 7. The trial court on appreciation of the evidence, mainly relying on the statements of the accused recorded under Section 313 of the Code of Criminal Procedure, referring to the counter case tried in S.C.No.68/2004, arising out of Crime No.39/2002, heldthatitwasafreeflghtandasarightofself defence, the crime was committed by relying on the evidence of PW19, the Investigating Officer, who has stated that accused I to 4, were admitted to the hospital and counter case was registered in Crime No.39/2002 for offences punishable under Sections 143, 147, 323, 0 ‘3 324, 504, 506 read with section 149 of the Indian Penal Code and also relying on the admission made by PW 1, PW2, PW4 and PW7 that the accused 1 to 4 were also admitted to the hospital accordingly, the learned trial Judge acquitted all the accused for the aforesaid offences. As against the judgment of acquittal, the State is in appeal. 8. We have heard Shri.Bahubali A. Danawade, learned HCGP for the State. Though the hearing list was issued in advance and the accused are represented by the learned counsel, 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 lJttar Pradesh), we were taken through the entire evidence and we consider the appeal on merits. 9. The prosecution has examined P.W.1 to P.W.21. As usual, witnesses to the mahazar have not supported the case. P.W.l, P.W.2, P.W.3 and P.W.7 are the 4 14 injured witnesses. P.W.4 and P.W.6 are the eve witnesses to the incident. P.W.6 is the wife of deceased Anneppa. P.W.1 is the son of P.W.3. P.W.7- complainant is the uncle of P.W. 1. 10. P.W.2 in his evidence has stated that, he had suspected that Accused No.1 had stolen the babul tree log from his land. In this regard, P.W.2 had informed P.W.7 and P.W 7 had convened a panchayath and he had gone to call Accused No.1. Accused No.7 abused P.W.7 in filthy language. Accused No.5 assaulted P.W.7 with stick on his leg and head. At that time, deceased Anneppa tried to rescue P.W.7. Accused No. 1-Laxman, Accused No.2-Ravindra assaulted Anneppa with stick on his chest. back and head. Anneppa sustained bleeding injuries, blood was oozing from his nostrils. Yamanappa who intervened was also assaulted by Accused No.6 and Accused No.4 with stick due to which Yamanappa also sustained head injury. When P.W. 1 intervened and tried to pacift. Accused No.10 and Accused No.6 nsat ltc d P.W. 1 ith stick P.W I a so fJ* 4. 15 sustained injuries on his back and head. When P.W. l’s mother Ningawwa-P.W.3 intervened, she was also assaulted by Accused No.8 with stone. She sustained injury near left eye. When P.W.2 tried to intervene, he was also assaulted by Accused No.9 with stick. Due to fear, no body came to separate the accused. One Halleppa came and sent accused by advising them. The police came and took P.W. 1, P.W.7-Sangappa, Yamanappa, Andaneppa, P.W.2-Yalagurdappa and P.W.3-Ningavva to General Hospital at Hungund. 11. Similarly, P.W.2-Yalagurdappa who speaks of motive has stated that, two months prior to the incident, he had cut the babul tree standing in his land and kept the cut wood. Thereafter babul tree stem (log) which was kept in his land was stolen. He had suspected that Accused No.1-Laxman might have taken the said wood. When he enquired with Accused No.1, Accused No.1 denied the same. He went arid informed P.W.7. P.W.7 informed him that he would request the elderly persons to enquire. In this regard, P.W.7 16 requested P.W.2, Suryagouda, Yallanagouda and Anneppa to come to Ganjihal village. When they came to Ganjihal village. P.W.7 went to the house of Accused No. I for panchayath informing that elderly persons have come from Bommanagi village. Accused No.7 abused P.W.7 in filthy language and assaulted on his head. Accused No.5 assaulted P.W.7 on his leg due to which he fell down. Deceased Anneppa intervened to separate accused assaulting Sangappa-PW.7. At that time, Accused No. 1 -Laxman assaulted Anneppa with stick on his head due to which Anneppa sustained bleeding injury. Accused No.2 assaulted Anneppa with stick on his face due to which blood started oozing from the nostrils and mouth and Anneppa fell down, At that time, Yamanappa intervened to separate the accused. Accused No,3 assaulted Yamanappa with stick on his head, Accused No,4 assaulted Yamanappa with stick on his back. When P.W2 tried to intervene, accused no.9 assaulted him on his head. When P.W.3 Ningawwa tried to separate. accused no.8 assaulted her. 4 F, When P.W. 1 intenened, he was also assaulted by accused No 10 and 6. Number of persons gathered near the spot. however, none of them came to the rescue of the injured. One Halleppa came and advised accused and sent them from the spot. Accused assaulted P.W. 1, P.W.2, P.W.3. P.W.7 and the deceased by taking the fire wood kept in the house of P.W.7 P.W.2 identified the sticks as M.O. 1 to M.O.8 and stone M.O.9. 12. Consistently, P.W.3 another injured witness and mother of P.W. 1 has also stated that Accused No.1 Laxman and Accused No.2-Ravindra assaulted Anneppa with stick on his head and face. When he came to rescue of P.W.7, he ns assaulted. When Yamanappa came to rescue, he was also assaulted by Accused Nos. 3 and 4. When PW3 intenened Accused No8 assaulted her. Accused No.9 assaulted P W.2 md Accused No.10 assaulted P.W. 1 13. C’omplamant P.W ho has also sustained mjunes his stated thit on e d te of th incident at 4 -< ) Ct) Cli) i) CD 9) CD CD CD P) C) C) ) CD C) - C) CD C CD C c C Cl) CD CD C) r+ Ct) p ) CD CD CD Cf Ct) CD CD CD C i) C!) CD C) C) CD cii CD Y2 Cl) C) C Cli C/I Cl) Q Cl) C) CD CD C cIQ C r Cii C,) C i) C) C) CD CD C) - C) C C Cl) > C) C (j) r CD CD CD CD C Cl) i) CD 1) C!) - r — CD ci) ci) Q ci) C) C,) C) ci) C ci) -t CD CD z ci) C C J1 ci — — — C/) C ci) C dci fr CD ci) Cl) Cl) Cii C C) Cl) £) Cl ci) C) ci) CD CD ci) :— C) —, C) Cl2 _ CD CD CD CD C) CD CD L. 2 C ci) -‘i -1 C c1 Cl) Cl) :i CD —3 CD — CD CD ci) ci) CL C, CL Cl) r CD CD ci r I C C) D C) C) ci:l C,) — Cl) CD t ci) cii CD — 2 r cr CD CI) C 1t) CD dI c 4 ci) - Cl) N ;c? CI) , C) ci) CL L C) C N C,) CD CL CI C/) CL j 2Cs ? CAJ CA) ,)/ ,j — c CD — C/Ir* - Cl) ‘ C) :3- z- C- 4 19 deceased Anneppa was assaulted by Accused No.1 with stick on his head and Accused No.2 with stick on his face. No doubt, P.W. 1 has stated that deceased Anneppa died on the spot. The evidence of P.Ws. 2, 3 and 7 states that he was taken to hospital where he succumbed to the injuries. 15. P.W.4 is the wife of P.W.7. She has stated that at about 3.00 p.m. on the date of the incident infront of her house, quarrel took place between her husband and Accused No.1. Accused No.1 was under impression that P.W.7 had informed P.W.2 that Accused No.1 has stolen the wooden leg from the land of P.W.2. Though P.W.7 stated that he had not informed and he will call elderly persons, Accused No.7 assaulted her husband-P.W.7 with stick on his head. He sustained bleeding injury. Accused No.5 assaulted P.W.7 with stick on his leg. Anneppa who tried to separate, Accused No.1 assaulted Anneppa with stick on his head alleging as to why he is intervening. Accused No.2-Ravindra assaulted Anneppa with stick on his face. Yamanappa who intervened was ) Ci CI) > (ID (ID ‘ X Dr CD CD D CD C CD CD C12 CD CD CID r N CD D C CD D ) Cl) CD CD CD r CD CD ct a DD CD I CD C a Cl) 4 — 4 C CD o CD CD CI) Q -4 C ‘ i c Cl) CD Dr) P D r cn CD 4 CD Q e i CD ) r+ ) rj - CD CD CD rz::$ j — CD S) Cl) CD CD Cl) r CD - 0 0 ) Cl) CD 4 r CD CD C Q. Cl) C CD CI) j I CD rt rt 4 CD CD CD Cl) r CD C (1 — CD C’) < c ci 0 CD CD CD x CD-C a CD CD CD CD CD CD CD CD CD CD n ) CD CD r rt CD -4 CD r p CD i Cl) 0 CD CD 4 -4 r Cl) CD CD CD CD CI) -4 - (I) C CD CD Cl) CD ri CD CD Cl) Cl) CD a (1 P Z Cl) Cl) C CD CD C ( CD C C’) Cl r m CD C CD CD - CD C 0 - CD 0 u CD CD C/) CD CD CD C P’ no.2 assaulted Anneppa with stick on his face, due to which Anneppa sustained bleeding injury. Blood was oozing from his nostrils and fell unconscious, Yamanappa who came to separate was also assaulted b Accused No.3. Accused No.9 assaulted P.W.2. Yamanappa also sustained bleeding injury and fell down, P.W. 1 who tried to intervene was assaulted by Accused No.9. P.W.3 who intervened was also assaulted by Accused No.8. At that time, P.W.5 was also assaulted with stick. Due to fear he stood at a distance from the spot. He has identified M.O. l to M.O.8. 17. P.W.1 to 7 have consistently stated the overt act of each of the accused and from this it is clear that the quarrel was between P.W 2 and Accused No. 1. P.W.2 had informed P.W.7 as regard to accused no.1 steeling wooden logs from his land, P.W.7 enquired with a(dUscd no I When accused no 1 denied he went to Bommanagi and requested the elcierl persons to convene paneha ath De ascd Anrn ppi as ne of the 4’ 22 member of the panchayath who had accompanied P.W.7 and came to the house of P.W.7. 18. P.W. 1 to P.W.7 have also consistently stated that quarrel started between Accused No.7 and P.W.7 and the other accused assaulted P.W.7. Deceased Anneppa had only intervened to pacify the quarrel and separate the accused from assaulting P.W.7. It is at that time, accused no.1 assaulted deceased Anneppa with stick on his head and accused no.2 assaulted on his face. Evidence of P.Ws. 1 to 7 is also consistent that deceased Anneppa was neither holding any arms nor was an assailant nor had made any attempt to assault the accused. The evidence of P.Ws. 1 to 7 states that deceased Anneppa intervened to pacify the quarrel between P.W.7 and accused and he was assaulted by Accused No.1 and 2. 19. P.W. 14-Doctor who conducted postmortem on the body of deceased Anneppa has found two injuries as under: 4: a (1) Lacerated wound on the right partial region measuring 3” x ¼” to the brain depth underlined wound there is depressed fracture of right partial bone. The edges of the wound is vague, blood clot present. (2) Left eye bowl is swollen and bluish black. On examination, sciera conjucture, junction is torned. 20. P.W. 14-Doctor has opined that the death might have taken place 12 to 14 hours before the postmortem examination. He has also opined of injury stated in his report Ex.P.8 might have been caused with sticks. Postmortem report Ex.P.8 shows the cause of death due to injury to brain (vital organ) as a result of extra dural hemorrhage. From the injury pointed out by P.W. 14- Doctor and as a cause of death shows that the assault on the head has resulted in injury to the brain and has further resulted in cause of death of Anneppa. Anneppaa is neither aggressor nor a party to the quarrel nor had any motive against the accused. The dispute was between P.W.2 and accused and it is P.W.7 whow j r Q C) r C:) ) ) CD 0 Z CD ) P) c, ) C) Cl’ - z CD - Q 2 Cl2 C r CD CD Z C/Q CD C CD o CD C) C Cl’ - ‘ CTQ CD r k) C 0 CD Cl, Cl) CD C12 CD !“ C) CD C s — c CD C - ) Cl’ C) p) Q CD r- ‘ 0 Z CD C Cl) CD CD CD > CD CD CD CD C) CD . Cl’ CJ) ) C ) ) Q ) C J) C,) CD C) C) CD C CD C) Q ) i) - CD C CD C o CD CD CD 1 ) O CD 0 CD D CD p) ) C r CD o CTQ CD C) CD ) C/) CTQ : c , — CD C C CD C) CD C CIQ p r Cl) r t CD CD CD CD C CD CD CD 4 25 sheet in pursuance of the complaint IIled by Accused No.3. Still he is shown as accused. 23. In statement under Section 313 Cr.P.C., accused have produced the chargesheet. Charge sheet appears to have been filed on 14.03.2002 after the death of Anneppa wherein it is alleged that the accused had gone to the house of P.W.7 where they were assaulted. Charge sheet is filed for the offence punishable under Section 147, 148, 302, 323, 504 r/w 149 IPC. k has come in the evidence