IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 31ST DAY OF MARCH 2011 PRESENT THE HON’BLE MR. JUSTICE SUBHASH B. ADI AND THE HON’BLE MR. JUSTICE N. ANANDA CRIMINAL APPEAL No.2398/2005 c/w NAL APPEAL No. 1822 2005 IN CRL.A2398/2OO5 BETWEEN: STATE OF KARNATAKA BY P.S.I., LOKAPUR POLICE STATION ,.. APPELLANT (BY SR[.V.M.BANAKAR, ADDL, S.P.P.) AND 1. MANJU RANGAPPA KANNAPPANNAVAR AGE: 20 YEARS, 0CC: AGRICULTURE. R/O KATAGERI, NOW AT BAGALKOT. 2. MARUTI ASHOK MIRAJAKAR AGE: 21 YEARS, 0CC: TAILOR, R/O BAGALKOT. ... RESPONDENTS (BY SRI.T.HANUMAREDDY. ADVOCATE FOR SR1.GIR1SH B, BALADARE FOR Ri & R2) 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 dated 9.9,2005 passed by the Presiding Officer, Fast Track Court-Il, Bagalkot, acquitting the respondents-accused for offences punishable under Sections 143, 148, 323, 324, 326, 307, 504. 506 r/w 149 of I.P.C and set aside the aforesaid judgment and order of acquittal and to convict and sentence the respondents-accused. IN CRL.A 1822/2005 BETWEEN: 1. RAVI, S/0 LOKESH RATHOD, AGE: 24 YEARS. 0CC: AGRICULTURE, R/O CHIKKUR, BAGALKOT DISTRICT. 2. GOPAL, S/0 VITTAL DODDAMANI @ MUSHTIGERI AGE: 21 YEARS, 0CC: STUDENT, R/O TULASIGERI, ]UDHOLA TQ, BAGALKOT DISTRICT. 3. SURESH, S/0 HEMANTH RATHOD AGE: 22 YEARS, 0CC: STUDENT, R/0 BAGALKOT, ... APPELLANTS (BY SRI.T.HANUMAREDDY ADV.. FOR SRI.S.M.KLWAD, ADV.) AND STATE BY LOKAPUR POLICE STATION REP. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING. BANGALORE 560 001. RESPONDENT (BY SRI.V.MBANAKAR, ADDL. S.P,P.) This Criminal Appeal is filed under Section 374 (2) Cr,PC, by the advocate for appellants-accused against the judgment dated 9-9-05 passed by the Presiding Officer, Fast Tract Court-Il, Bagalkot in S.C.No.47/05 convicting the appellants-accused for offences punishable under Sections 143, 148, 324, 326 r/w 149 I.P.C, and sentencing them to pay fine of Rs. 1000/- each, in default to undergo simple imprisonment for 1 month for an offence punishable under Section 143 r/w 149 of I.PC.. and sentencing them to pay fine of Rs.2000/- each, in default to undergo simple imprisonment for 2 months for an offence punishable under Section 148 r/w 149 of I.P.C., and sentencing them to pay fine of Rs.2000/- each, in default to undergo simple imprisonment for 2 months for an offence punishable under Section 324 r/w 149 of I.P.C, and further sentencing them to undergo R.I. for 3 years and to pay fine of Rs.5000/- each, in default to undergo simple imprisonment for 6 months for an offence punishable under Section 326 r/w 119 of l.PC. These criminal appeals coming on for final hearing this day, N.Ananda J, delivered the following: 4 JUDGMENT These two appeals have arisen out of the judgment made in SCNo47/05 on the file of Presiding Officer, Fast Track Court II, Bagalkot. 2. Crl.A 1822/2005 is filed by accused No.1, 3 and 5 against judgment of conviction. 3. Crl.A 2398/2005 is filed by the State against the judgment of acquittal of accused No.2 and 4. 4. We have heard Sri.V,M.Banakar, learned Addi. S.P.P. for State and Sri.T.Hanuma Reddv, learned counsel for accused Nos.1, 3 and 5. The interse relationship of some of the prosecution witnesses and the case of prosecution is as follows: 5. PW. 1Venkanna Timmanna Maled, PW,8Ashok Timmanna Maled, PW9 Krishnappa Timmanna Maled and PW. 1 0Lokanna Tulasappa Maled are direct brothers. They have a Sister by name Neelavva. She is married to PW,7 Hanumanth Sidda.ravappa Maregu‘ddi. PW5Sumangala is the daughter of PW. 7Hanumanth Siddaravappa Mareguddi and Neelavva. 6. PW.3—Lakshmibai is the wife of PW.1. PW7 Hanumanth Siddaravappa Mareguddi and his wife Neelavva are residents of Thulasigeri village. PW. 1. PW.3. PW.8 and PW.9 are residents of Laxanatti village, within the jurisdictions of Lokapur P.S. Accused No.3 Gopala Vittal Doddamani is a resident of Tulasigere. 7. About few months prior to 27.04.2004, PW.5- Sumangala Hanamanth Maled was studying in 9th Standard in V V.K.High School at Bagalkot. Accused No.3-Gopal Vittal Doddamani ía Mustigeri was also a college student. He was studying in some college at Bagalkot. Accused No.3 developed a desire to marry PW.5-Sumangala Hanmanth Maled. In that connection, he had sent some of his welLwishers and elders to the parents of PW.5 but, the parents of PW.5 viz., PW,7 Hanumanth Siddaraappa Mareduggi and his wife Neelaa rejected the proposal as PW 5 xias aged about 16 ears an I sh as still stuthin rr standard, Ace ised / I 6 No.3 became frustrated by the rejection of his proposal by PW.7. Thereafter, he started following and harrassing PW.5, PW7 and his wife Neeiavva thought it fit to leave their daughter Sumangala (PW.5) in the house of PW.i-Venkanna Timmanna Maled at Laxanatti. Accordingly, PW. 5 was staving in the house of PW. 1 at Laxanatti. Accused No.3 had also approached PW, 1 and insisted him to give PW.5-Surnangala in marriage to him. PW. 1 rejected the proposal by stating that PW.5 was young and she had not attained marriageable age. Therefore, accused No.8 developed grudge against PW. 1. Accused No.1, 2, 4 and 5 were friends and associates of accused No.3. 8. On 27.04.2004, accused No.1 to 5 travelled in a Tata Sumo vehicle bearing registration No.KA01/N-51 14 (belonging to PW. ii) from Bagalkot to Laxanatti, Accused Nos. 1 to 5 came near the house of PW. 1 and questioned his audacity to refuse to give PW5 in marriage to accused No.3 and also abused him in vulgar language. Accused Nos,3 and 5 assaulted PW. 1 with clubs and a broken beer bottle. When PW8Ashoka intervened, accused Nos. 1, 3 and 5 11 I (\) - 7 assaulted him with clubs and a broken beer bottle. Some of the prosecution witnesses intervened and saved PW. 1 and PW.8 from the hands of the accused. Thereafter, accused Nos. 1 to 5 fled away from the place. Accused No. 1 while running away from the place of incident fell down and sustained injuries to his leg. Accused Nos.2 to 5 got into Tata Sumo vehicle bearing No,KA0i/N51l4 and left the place. The accused had left the weapons of offence near the place of occurrence. 9. At the first instance, PWs. 1 and 8 were treated by PW6-Dr.Suresh Umesh Naik in Primary Health Center at Lokapur. As PW. 1 and PW.8 had suffered fractures, they were shifted and admitted in Kerudi hospital at Bagalkot. When PW. 1 was in the hospital, PW. 10 prepared the first information and the same was handed over to the jurisdictional police at 1000 on 2T042O04. PW.1 had suffered fracture of PIP joint of right thumb and other injuries. PW.8 had suffered fracture of right humerus. Both of the.m were treated in Kerudi hospital at Bagalkot. I. 1’ . . 8 10. The Investigating Officer visited the place of occurrence, collected the incriminating materials such as weapons used for commission of offence, blood stained clothes of PW. 1 and PW.8, recorded the statements of witnesses and also seized Tata Sumo vehicle bearing registration No.KA-01/N 5114 from the possession of PW.11. On completion of the investigation, charge sheet was filed against the accused. 11. The learned Trial Judge framed following charges: “1. That you accused-i to 5 on 27-4-2004 at about 9-00 p.m. at Laksanatti Village in front of the house of complainant within the limits of Lokapur PS. due to the grudge that the complainant has not performed the marriage of C.W.8 with accused Gopal of Mustigeri in furtherance of your common intention came in the seized Tata-Sumo to the house of complainant and formed into unlawful assembly the common object of which was to assault and attempt to commit murder of complainant and C.W.4 and thereby you accused have committed the offence 1) /7 f\J C$../1* 9 punishable U/sec. 143 R/W.s 149 I.P.C., and within the cognizance of this court. 2. Secondly, that you accused -1 to 5 on the above said date, time and place for the said reason in furtherance of your common intention of committed offence of rioting at that time you were armed with deadly weapons like sticks and beer bottles and thereby committed an offence punishable under sec.148 R/W.S.149 I.P.C., and within the cognizance of this court. 3. Thirdly, that you accused-i to 5 on the above said date, time and place for the said reason in furtherance of your common intention assaulted on the complainant and C.W.4 with hands, sticks and broken bottle on the head an. nose of complainant and on the right arm of C.W.4 and voluntarily caused simple and grievous hurt to them and thereby you accused-i to 5 have committed the offences punishable U/sec.323, 324 and 326 R/W.S.i49 I.P.C., and within the cognizance of this court. 4. Fourthly, that you accused-i to 5 on the above said date, time and place in furtherance of your common intention assaulted the complainant and C.W.4 with stick and broken bottle with such ftj 10 an intention or knowledge under such circumstances, that if by that act they were caused death of C.W. 1 and 4, they would have been guilty of the murder and thereby committed an offence punishable U/sec.307 R/w.s.149 of I.P.C., and within the cognizance of this court. 5. Fifthly, that you accused- I to 5 on the above said date, time and place in furtherance of your common intention abused the complainant and c.w.4 in filthy language, intentionally insulted them and thereby gave provocation to them intending that such provocation would cause the said persons to break the public peace and thereby committed an offence punishable under sec.504 R/w.s. 149 I.P.C., and within the cognizance of this court. 6. Lastly, that you accused-i to 5 on the above said date, time and place in furtherance of your common intention for the above reasons threatened the complainant and C.W.4 their lives with intend to cause alarm to them and that you accused committed an offence punishable U/sec.506 R/w.s. 149 I.P.C., and within the cognizance of this court.” r N ‘cè Ii 12. On behalf of the prosecution. PW’s. 1 to 13 were examined, documents as per ExP1 to P13 and material objects as per MO’s, 1 to 6 were marked. The contradictory portions in the statements of PW.5Sumanga1a Hanamanth 1aled. PW.7-Hanmant Siddaravapaa Marduggi, PW.8-Ashok Timmappanna Maled and PW.9-Krishnappa Timmanna Maled recorded under Section 161 Cr.P.C., were marked as Ex.D1 to D4. 13. On behalf of the defence, DW.LSmt.Jvothi Naresh Revankar. the then Section Officer, HESCOM, Lokapur was examined and document as per Ex.D5 was marked. The whole object of defence evidence was to prove the non existence of street lamppost near the place of incident, 14. The learned trial judge on appreciation of evidence and on hearing the learned counsel for parties, acquitted accused Nos.2. and 4 on the ground that there has been inconsistency in the evidence of injured witnesses and eye‘itnesses. relating to identification of accused Nos2 and 4. F 12 15. The learned trial judge accepting the evidence adduced by the prosecution held accused Nos. 1, 3 and 5 guilty of offences punishable under Sections 143, 148, 324, 326 r/w 149 I.P.C. 16. We find from the evidence on record that the motive attributed to accused No.3 has not been seriously controverted. In fact, it was suggested to PW.5 that accused No.3 and PW.5 had exchanged greetings. It was also suggested to PW.5 that she was interested in marrying accused No.3 and she was pressurising her parents to perform her marriage with accused No.3 but, their parents had rejected her request however, PW.3 had denied such suggestions. It was suggested to PW.8 that accused No.3 had sent his well-wishers and elders viz., Beemappa Balareddy, Avvappa, Balareddy, Venkappa Binapur, O.N.Poojara, Advocate to PW.7 with a proposal to give his daughter PW.5-Sumangala, in marriage to accused No.3. It was also suggested to PW.7 that PW.5 had written 70-80 letters to accused No.3 however, such letters could not be produced as they were taken by panchayatdars. AL 13 17. During cross examination, PW. 1 had deposed; about 15 days prior to the date of incident, accused No.3 had visited the house of PW. I -Venkanna Timmanna Maled with a proposal to PW. 1 to give PW.5 in marriage to accused No.3. P1W. 1 rejected the proposal stating that PW.5 was still studying. 18. There is consistent evidence given by PW. I, PW.5 and PW.7 that, after marriage proposal was turned down, accused No.3 was following and harrassing PW.5. We do not find any reasons to suspect the evidence given by PWs. 1, 5 and 7. PW.5 was not married by then. Therefore, PW.7 being the father of PW.5, P1W. 1 being the maternal uncle of PW.5 would be least disposed to spread rumours that accused No.3 as following PW.5 and accused No.3 was msisting that PW.5 shall be given in marriage to him. From the tenor of cross-examination of PW’s. 1. 5 and 7 te find that accused No 3 has not seriously controverted this fact. 19. As per the evidence adduced by prosecution. the incident of assault occurred at 9.00 p.m. on 27.04.2004 in 14 front of the house of PW. 1 in Laxanatti. In the incident, accused No.1 to 5 assaulted PW. 1 and his younger brother PW.8-Ashok Timmappanna Maled, 20. PW. 1 has deposed: that on the date of incident, at about 9.00 p.m, when he as in front of his house, his younger brother PW.8 was also with him, at that time, accused No. I to 5 came in a Tata Sumo vehicle bearing registration No.KA-O 1/N 5114. Accused Nos. 1 to 5 got down from the vehicle and came near the house of PW. 1 and abused PW. I as “ it s-: cc 3 z’ Accused No.3 assaulted on the upper limb of PW. 1 with a club, accused No.5 assaulted PW. 1 with a broken beer bottle. When PW.8 interened, accused No.3 assaulted him with a club and accused No.5 assaulted with a broken beer bottle on PW.8- Ashok, Accused No.1 had also assaulted PW8. The witnesses namely Lakshmihai (PW.3), Mudakappa Dundappa Chigaraddi (PW.4) and Krishnappa Timmanna Maled (PW.9) came to the rescue of PW’s. I and 8. At that time, accused 15 No. 1 to 5 ran away from the place. In the process of running, accused No. 1 fell down and suffered injuries to his leg, the rest of the accused got into the vehicle and fled away from that place. PW. 1 had seen the incident of assault and also assault on PW8 in the light shed by street lamppost located in front of their house. PW. 1 had deposed; at the first instance, he was taken to Primary Health Center at Lokapur, the police had come there; PW. 1 had dictated the first information to PW. iOLokanna Tulasappa Maled and the same was given to police. As PW. 1 had suffered fracture, he was shifted and admitted to Kerudi hospital at Bagalkot. PW. 1 had identified the clubs, broken beer bottle with which he was assaulted and he had also identified his blood stained clothes. During crossexamination. PW, 1 had deposed that, the incident of assault took place for about 5 10 minutes, about i520 persons had gathered there, The jeep was parked at a distance of ten feet from the place of incident, PW. 1 and his brothers PW.8 and PW.9 were living in the adjacent houses p. j’J ct 16 however, they had a common mess, PW. 1 had admitted, about 15 days prior to the date of incident, accused No.3 had approached PW. 1 and asked him to give PW.5Sumanga1a in marriage to him however, PW. 1 had rejected such proposal. During crossexamination, PW. 1 had deposed that, PW.5Sumanga1a had told PW.1 that accused No.3 was harrassing her whenever she used to go to school. PW. 1 had admitted that he knew the names of all the accused when he had lodged the first information. 2 1. At this juncture, we notice from the contents of the first information that PW. 1 had given the names of accused Nos, 1, 3 and 5 and he had stated that there were two other persons along with accused Nos. 1, 3 and 5. In view of categorical admission of PW. 1 that he knew accused No. 1 to 5 and he also knew their names, a reasonable doubt would arise as to why PW. 1 had not mentioned the names of accused Nos.2 and 4 in the first information. 22. From the evidence of PW. 1. we find that the presence of accused Nos, 1, 3 and 5 near the place of incident f) &‘ 17 and accused No.5 assaulting PW. 1 with a broken beer bottle and accused No.3 assaulting PW. 1 with a club does not suffer from any discrepancy. So also, the evidence of PW. I that when PW.8-Ashoka intervened, accused No.3 assaulted PW.8 with a club and accused No.5 assaulted PW.8-Ashoka with a broken beer bottle does not suffer from any discrepancy. The evidence of PW. 1 finds ample corroboration from the evidence of PW.6-Dr.Suresh Umesh Naik, Medical Officer of P.H.C. at Lokapur and evidence of PW. 12-Dr.Hanamanh Ramanna Katti, Medical Officer from Kerudi Hospital at Bagalkot. 23. At this juncture, we notice that the defence has not suggested to PW. 1 that he had any motive to falsely implicate the accused. As already stated, PW. 1 is from Laxanatti village. There was no previous enmity between PW. 1 and the accused. PW. 1 was injured in the incident of assault. Though the defence had made certain hypothetical suggestions to PW.6 and PW. 12 that the injuries found on PW. 1 could have been caused due to fall from a bullockcart, we do not find any .Ilt). £L-.. fr’h.-t-’- 4 R. 18 substance in such suggestions. PW.b Dr.Suresh Umesh Naik had treated PW.1 and PW.8 in P.H.C. at Lokapur. 24. PW.6 had deposed: that on 27.04.2004 at 10.00 p.m., he examined PW.8-Ashok Timmappanna Maled. On examination, he found fracture of right humerus. therefore. he was referred to Keroodi hospital at Bagalkot. On the same day, at about 10.30 p.m.. he had examined PW. 1 — Venkappa Timmanna Mated and found following injuries: i) Contusion on left thumb ii) Dislocation of PIP joint Therefore, he referred PW. 1 to Keroodi Hospital at Belgaum. 25. PW. 12-Dr.Hanamanth Ramanna Katti was working as a Doctor in Keroodi hospital at Bagalkot. PW 12-Dr.Hanamantha Ramanna Katti had deposec[ that on 28.04.2004. P.H.C.. Lokapura had referred Ashok Timmappanna Mated jPW.8) and Venkanna Timmanna Mated (PW. 1) for further treatment. On examination, he found that PW.8 had suffcred fracture ol right hu nens. PW. 1 enkanna C’ 4 19 Timmanna Maled had suffered dislocation of PIP joint of right thumb, PW. 12 had deposed that, PW’s, 1 and 8 had also suffered other injuries which are described in the case sheets marked as per Ex,P8, 9 and P.11. 26. As per the contents of Ex.P9, we find that PW,8 had suffered following injuries: i) Fracture shaft of right humerus ii) Lacerated wound over right temporal area measuring 2 cm x 1 cm iii) Lacerated wound measuring 1cm x 1 cm iv) Abrasion over right lower 27. As per the contents of case sheet (Ex,Pi 1), PW. I had dislocation of PIP of the right thumb. He had suffered lacerated wound over PIP joint, abrasion over nose and abrasion over right frontal region. The defence had sought to discredit the evidence of PW. 12 on the ground that PW. 12 had not produced Xrays film/report and case sheets as per ExP9 and P11 were not produced along with the charge sheet, PW. 12 has produced X-rays report as per EcP8, wherein, there is reference to Xrays NoO419, It is shown in the report that PW8 had suffered fracture of right.. humerus. PW. 12 had 20 produced X-rays report as per Ex.P10, wherein, then is reference to X-rays No.0420 which would disclose dislocation of PIP joint of right thumb. Therefore, then is no substance in the contention of the defence that PW. 1 and PW.8 had not suffered injuries and fractures. It is true that the case sheet was not a part of the charge sheet. However, from the evidence of PW.6 - Dr.Suresh Umesh Naik and wound certificate as per Ex.P5 and P6, we find that, PW.6 after diagnosing the fractures and dislocation of PIP joint had referred PW. 1 and PW.8 to Kerudi hospital at Bagalkot. Therefore, the case sheets relating to PW’sl and 8 maintained in Kerudi hospital at Bagaikot are relevant for proper decision of the case. The learned trial judge has accepted the same. 28. PW3-Lakshmibai is the wife of PW. 1. PW.3 had deposed; on the date of incident, accused Nos. 1 to 5 came in Tata Sumo vehicle and assaulted her husband (PW. 1) and her brother-in-law (PW.8). From the cross-examination of PW.3 we find that, though she had not witnessed the entire incident of assault, she had deposed that, by the time she came, the jeep was not there. Yet, the fact remains, the 21 evidence given by PW.3 lends corroboration to the evidence of PW. 1 that he had suffered injuries due to external violence. PW3 had also explained the motive for the accused to assault her husband (PW. 1) and her brother-in1aw (PW.8) 29. PW4 — Mudakappa Dundappa Chigaraddi who is stated to be an eyewitness has not supported the case of prosecution except stating that, on the date of incident, there was a quarrel near the house of PW. 1 and PW’s, 1 and 8 had suffered injuries. 30. During cross-examination by the Public Prosecutor, PW.4-Mudakappa has admitted, when accused were running away from the place of occurrence, accused No, 1 suffered injuries due to fall. PW4 had deposed that, when he reached the place of occurrence, a jeep was moving from the place of incident. Therefore, evidence of PW4 that accused Nos. 1 and 8 had suffered injuries and the jeep had left by the time he reached the place of incident, lends corroboration to evidence ID C of PWi, -fl e 31. PW.8-Ashok was injured in the incident of assault. The evidence of PW 8 is more or less similar to the evidence of PW.l. PW.8 had deposed that on 27.4.2004 at 9 p.m. PW.8 and his brother PW. 1 were near their house. a Tata Sumo came and stopped near their house. Accused Nos. 1 to 5 got down from the jeep and abused and scolded PW. 1 for rejecting the proposal of accused no.3 to marry PW.5- Sumangala. Accused No.3 assaulted PW. I with a club, accused No.1 assaulted PW. 1 with a club, accused No.5 assaulted PW. I with broken beer bottle. When PW.8 intervened, accused No.3 assaulted with a club on his hands and legs. Accused No.5-assaulted PW.8 with a broken beer bottle. The other accused fisted and kicked PW.8. Thereafter, accused fled away from the place. PWs. 1 and 8 were shifted to PHC. Lokapur. and after preliminary treatment they were shifted and admitted m Kerudi hospital at Bagalkot. 32. During cross examination. PW.8 had admitted that there were about 15 to 20 persons near the place of incident. PW.8 had denied the suggestion that accused had not C 23 come in a jeep on the date of assault and accused No.3 had not assaulted him with a club. PW.8 had denied the suggestion that accused No.5 had not assaulted him with a broken beer bottle. PW.8 had denied the suggestion that he was taking part in the bullock cart race and that he had suffered injuries due to fall from a bullock cart. During the course of cross-examination of PW.8, contradictions as per Ex.D-3 and D-3(c) were brought on record. On perusal of the contradictions as per Ex.D-3 and D-3(c), these contradictions are, whether PW. 1 and his brother PW.8 were living in the same house and they were living in the adjoining house. Therefore, Ex.D-3 and D-3(c) are of no consequence. They