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2010 DIGILAW 1148 (KAR)

State v. S. A. Chand Basha

2010-11-04

B.V.PINTO, K.SREEDHAR RAO

body2010
JUDGMENT B.V. PINTO, J.—This appeal is filed by the State challenging the judgment dated 9.6.2005 passed by the learned Sessions Judge, Kodagu, Madikeri in S.C. No. 4/2004 acquitting the respondents 1 to 3 of the offences under Section 302 read with Section 34 IPC. 2. The case of the prosecution is that on 29.9.2003 at about 8.30 pm at Sunkadakatte, Virajpet, within the limits of Virajpet Town Police, the accused No. 1 was dealing in selling ganja business. The deceased Suresh, C.W. 1-Prasanth, C.W. 2-Sanju @ Premkumar, C.W. 3-Santhosh and their friends who are the residents in the area, informed the said activity of the accused to the higher authorities and in that respect, accused 1, 2 and 4 alongwith juvenile offender-A5 were nurturing grudge against the deceased and the witnesses and, therefore, on the date of offence, when the complainant and deceased were going on the road, the accused persons, namely, accused No. 1-Chandpasha assaulted with knife to one Sanju-C.W. 2 on his left side rib and abdomen, Accused No. 3 has assaulted with knife on the deceased-Suresha on his cheek, chest and stomach and also assaulted with the same knife to Prasanth on his left rib and A-4 assaulted with club on the head of Prasanth and A2 assaulted with club on the left side of chest of Santhosh and A-1 further assaulted with club on the head of C.W. 19-H.K. Shyam and voluntarily caused injuries to C.Ws. l to 3 and C.W. 19 and caused the death of Suresha. Thereby the accused are alleged to have committed an offence under Sections 324, 302 read with Section 34 of IPC. 3. It is also further charged against the accused that A1 alongwith juvenile offender with common intention has assaulted P.Ws. 1 to 3 with machu on their chest and other parts of the body, under such circumstances, that if by that act they had committed the murder of C.Ws. 1 to 3, they would have been guilty of murder, thereby they are alleged to have committed an offence under Section 307 read with 34 IPC. 4. It is also further alleged against the accused that deceased Suresha being the member of SC and ST community, the accused persons have further committed an offence under Section 3(1)(ii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 5. 4. It is also further alleged against the accused that deceased Suresha being the member of SC and ST community, the accused persons have further committed an offence under Section 3(1)(ii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 5. The prosecution in order to prove its case, has examined 46 witnesses and got marked Ex. P1 to Ex. P50(a) and produced MOs 1 to 5. The defence of the accused is one of the total denial and they have got marked Ex. D1 to D3 being portion of statement of P.Ws. 2 3 and 8 respectively. After hearing the prosecution and the defence counsel, the learned Sessions Judge was pleased to hold that the prosecution has failed to prove any of the charges levelled against the accused beyond reasonable doubt and, therefore, has acquitted the accused. The State has filed this appeal. 6. The prosecution in this case has commenced with filing of the complaint by one Prasanth who is examined before the Court as P.W. 1. In his complaint, Prashanth has stated that on 29.9.2003 he had gone to coolie work alongwith one Ganesh to the house of one Manoj. At about 5.30 p.m. they have come back from the work. At 8.30 p.m. when he was going to the house alongwith his brother, P.W. 2, P.W. 3 and deceased Suresha in front of house of Chandpasha-A1, the accused No. 1, his wife and children started abusing them. At that time, they asked as to why they are abusing them and at that time, the accused No. 3-Nissar Ahamad has assaulted by means of knife on the right side of the chest of Prasanth. The accused-Fathima-A4 has assaulted him on his head by means of club in order to kill him. At that time, Chandpasha-A1 assaulted Sanju on his left chest by means of knife and caused bleeding injuries and again assaulted by means of knife on his stomach. Thereafter, the deceased Suresha was assaulted by Nissaar Ahamad by means of knife on his chest and A1 has also assaulted Santhosh and Fathima A4 has assaulted Sanju by means of knife on the left hand. Thereafter, A2 Sharif has assaulted all the four persons by means of clubs. At that time, Veenu, Janardhana, Vinod, Gynanashela came and extricated them from the hands of the accused and hence prayed for action. Thereafter, A2 Sharif has assaulted all the four persons by means of clubs. At that time, Veenu, Janardhana, Vinod, Gynanashela came and extricated them from the hands of the accused and hence prayed for action. This complaint was received in the Virajpet Police Station at about 11 p.m. by recording the statement of the injured in Virajpet Government Hospital. Thereafter, a case was registered in Crime No. 125/03 for the offence under Section 307 read with Section 34 IPC. The deceased Suresha succumbed to the injuries and, therefore, the offence under Section 302 is added to the FIR. After investigation, the police have filed charge sheet for the offence under Sections 302, 307 and 324 read with Section 34 IPC and under Section 3(1)(ii) of the SC and ST (Prevention of Atrocities) Act, 1989. It is found that accused No. 3 is juvenile offender and, therefore, his case has been transferred to juvenile Court and Al, A2 and A4 have faced the trial in this case. 7. P.W. 1-Prasanth has deposed before the Court as per the version in the FIR. He has specifically stated that he has been assaulted with clubs and knife. The accused has also assaulted deceased Suresha with knife. They have assaulted Sanju P.W. 2 and he sustained bleeding injuries upon his stomach and his chest. Santhosh also sustained injuries upon his hand. Thereafter, he ran away from the spot since the situation was untolerable. Therefore, he become unconscious and went to hospital for treatment. Then in the same night, his brother Sanju and Suresha had been brought to Madikeri General Hospital for treatment. 8. P.W. 2-Sanju is another injured eye-witness who has also deposed regarding the presence of juvenile offender and the accused persons at the scene of offence and the injuries having been caused by the accused on him and P.W. 1 and P.W. 3 and also on the deceased. He has specifically stated that Nissar Ahamad assaualted with the knife on Suresha and the accused persons assaulted them with knife and clubs. He has further stated that he has lost conscience. 9. P.W. 3-Santhosh has also corroborated the version of P.Ws. 1 and 2 and version in the FIR. 10. P.W. 4-Vinod is a signatory to Exs. P3 and P4, which are spot mahazar and seizure mahazar respectively. However, he has turned hostile to the case of the prosecution. He has further stated that he has lost conscience. 9. P.W. 3-Santhosh has also corroborated the version of P.Ws. 1 and 2 and version in the FIR. 10. P.W. 4-Vinod is a signatory to Exs. P3 and P4, which are spot mahazar and seizure mahazar respectively. However, he has turned hostile to the case of the prosecution. P.W. 5-Janardhan and P.W. 6-Jnanasheela have turned hostile to the case of the prosecution. 11. P.W. 7-Sundar is a signatory to Ex. P3. P.W. 8-Vinu Kumar has shifted injured P.W. 1 and P.W. 2 to the hospital in auto. 12. P.W. 9-Nagaraj is a signatory to Ex. P8-inquest mahazar. Similarly P.W. 1 is another witness to the inquest. P.W. 11 is a signatory to Ex. P4-seizure mahazar. However, he has turned hostile to the case of the prosecution. All other witnesses examined in this case have supported regarding various aspects of the case. 13. P.W. 34-Ganapathy is the police constable and he has stated that he has received the complaint and registered a case in Crime No. 121/03 for offence under Sections 323, 324, 506 read with Section 34 IPC. 14. P.W. 36-Ashok Anvekar is the I.O. in this case and he has conducted the investigation and has received caste certificates of the deceased and other documents in the case. 15. P.W. 38-Subba Rao is the retired Tahsildar who has issued caste certificate of the deceased Suresha. 16. P.W. 39-Ganesh is the PSI of Virajpet Police Station who has stated that a case in Crime No. 121/03 has been registered in the case for the offence under Section 307 read with Section 34 of IPC. 17. It is from the evidence of these witnesses the learned Sessions Judge has held that the evidence of witnesses is not inspiring confidence in the Court and has acquitted all the accused for the offences with which they were charged. 18. Heard Sri H.S. Chandramouli, learned SPP for the appellant and Sri M.N. Manohar and Smt. C.B. Badrunnisa appearing for the respondents-accused. 19. Perused the materials. It is seen that P.Ws. l to 3 and the deceased were going together on the date of offence and P.W. 1 to P.W. 3 have also sustained injuries. 18. Heard Sri H.S. Chandramouli, learned SPP for the appellant and Sri M.N. Manohar and Smt. C.B. Badrunnisa appearing for the respondents-accused. 19. Perused the materials. It is seen that P.Ws. l to 3 and the deceased were going together on the date of offence and P.W. 1 to P.W. 3 have also sustained injuries. The motive for the accused to commit the offence is the business of ganja which is carried out by the accused persons and from the evidence of the witnesses, it is clear that Accused No. 3-Nissar Ahamad has assaulted the deceased on the date of offence. The other accused, namely, A2, A3 and A4 have assaulted P.W. 1 to P.W. 3 and they have sustained simple injuries. From the materials it is further seen that Nissar Ahamad A3 and Fathima A4 have also sustained injuries as per the wound certificates of Nissar Ahamad Ex. P7 and Ex. P8. The learned counsel for the accused submitted that there is counter case registered against P.W. 1 to 3 and the said case has been disposed of with the finding of acquittal. Under the circumstances, on careful perusal of the entire materials on record, we find the act of A3 Nissar Ahamad in assaulting the deceased has caused the death of deceased. Further, as per the wound certificates Ex. P7 and Ex. P8, it is gathered that there was quarrel between two parties and in that quarrel the incident has taken place and the deceased died. Therefore, Section 148 and 149 cannot be invoked to charge other persons liable for offence and it is the individual acts, which are liable to be punished. In that view, the deceased has been assaulted by Nissar Ahamad and he is liable to be punished. Since he is a juvenile offender, his case has been transferred to juvenile Court. Therefore, we are not passing any remarks in so far as he is concerned. In so far as the other accused persons are concerned, they have caused injuries to P.W. 1 to P.W. 3 and the said injuries are simple in nature. In view of the counter case, the accused were assaulted by the deceased at the scene of occurrence and even the wound certificates of Fathima and Nisar Ahmed which are marked in this case indicate their presence and presence of P.Ws. In view of the counter case, the accused were assaulted by the deceased at the scene of occurrence and even the wound certificates of Fathima and Nisar Ahmed which are marked in this case indicate their presence and presence of P.Ws. 1 to 3 at the scene of occurrence and at the time mentioned in the prosecution case. Therefore, we hold that the accused 1, 2 and 4 are guilty of the offence under Section 324 IPC and they are liable for conviction for the said offences. It is submitted that A1 was in custody for 20 months and A2 for one year and A4 for 2½ months. In view of the above, the following order is passed. 20. The appeal filed by the State is allowed in part. The acquittal of Al, A2 and A4 for the offence under Section 324 is set aside and they are convicted for the said offences. In view of the fact that since the accused have already been in custody, sentence undergone by them is deemed to be the sentence to be imposed on them and, therefore, they are liable to pay fine of Rs. 5,000/- each, in default to undergo SI for 2 months. The accused are directed to pay the fine amount within one month from today. In so far as charge under SC and ST (Prevention of Atrocities) Act, the incident was not caused due to caste consideration and the complaint is based regarding ganja business of the accused, the accused persons have assaulted P.W. 1 to P.W. 3. Therefore, the provisions of Section 3(1)(ii) of SC and ST (Prevention of Atrocities) Act is not attracted. Therefore, the acquittal of the accused for the said offence, does not call for interference.