Research › Search › Judgment

Karnataka High Court · body

2011 DIGILAW 311 (KAR)

Mahadeva Rao Ghathe v. State of Karnataka

2011-03-16

B.V.PINTO

body2011
JUDGMENT B.V. PINTO, J.—This appeal is filed challenging the judgment dated 29.3.2004 passed by the First. Additional Sessions Judge, Mysore in S.C. No. 1.69 of 1996 convicting the appellants and sentencing them to pay a fine of Rs. 200/- each for the offence under Section 447 read with Section 84 IPC and to pay a fine of Rs. 300/- each for the offence punishable under Section 841 read with Section 84 IPC and to pay a fine of Rs. 400/- each for the offence punishable under Section 323 IPC read with Section 34 IPC and sentencing them to undergo R.I. for a period of 2 years and to pay a fine of Rs. 1,000/- each for the offence punishable under Section 307 IPC read with Section 34 IPC with default clauses. 2. The ease of the prosecution is that on 18.10.1991, at about 3.00 p.m., in Kereyur village of Hunsur taluk the accused with common intention committed criminal trespass by unlawfully entering into land bearing survey No. 91 which was in the possession of CW. 1 Sajjan Rao Kaddam and wrongfully restrained the complainant, assaulted him and attempted to commit his murder thereby, they are alleged to have committed offences punishable under Sections 447, 341, 323 and 307 read with 34 IPC. It is further alleged that on the above said date, place and time in furtherance of their common intention, accused Nos. 2 and 3 have caused hurt to CW. 1. by pressing his private part, accused No. 4 voluntarily caused, hurt by kicking him and accused No. 5 caused grievous hurt by assaulting CW. 1 with chopper and accused No. 1 held CW. 1, thereby, all of them are alleged to have committed offences punishable under Sections 323 and 326 read with 34 of IPC. 3. Originally the matter was taken up by the learned JMFC, Hunsur for trial. After recording the evidence of P.Ws. 1 and 2, the prosecutor filed an application under Section 323 Cr.P.C. praying that the case deserves to be tried before the Court of Sessions. The learned Magistrate dismissed the said application. The prosecution thereafter filed a criminal revision petition before the Sessions Court and the learned Sessions Judge by order dated 16.11.1995, allowed the said application filed by the prosecution and directed that the case; shall be committed to Court of Sessions. The learned Magistrate dismissed the said application. The prosecution thereafter filed a criminal revision petition before the Sessions Court and the learned Sessions Judge by order dated 16.11.1995, allowed the said application filed by the prosecution and directed that the case; shall be committed to Court of Sessions. Accordingly, the matter was taken up for trial before the II Additional Judge, Mysore. The learned Sessions Judge after hearing the parties before framing charge, framed fresh charge for the offences mentioned above and also framed a further charge for the offence under Section 307 read with 34 IPC alleging that on the aforesaid place, date and time, the accused have attempted to commit the murder of CW. 1 by assaulting with chopper on left palms and also on his neck with an intention to commit his murder. Thereafter the prosecution examined in all 9 witnesses and got marked Ex. P1 to P9 and produced M.O. 1 to 4. The defence of the accused one of total denial. After hearing the prosecution and the defence, the learned Sessions Judge was pleased to hold the accused guilty and convicted and sentenced them as herein before mentioned. 4. Heard Sri Suresh, learned Counsel for the appellants and Sri Vijaya Kumar Majage, learned HCGP for the respondent State. 5. Learned Counsel for the appellants submits that accused No. 5 had been sent, to custody on the date of the judgment and this Court has not passed order for suspension of sentence imposed on him. Hence, A5 has served the entire sentence imposed on him by the Sessions Judge and he has been already released from the custody. He further submits that the evidence on record does not indicate that except A5, others have taken part in the incident at all, since, Ex. P5 wound certificate does not contain any other injuries than caused by weapons and A5 was holding the weapon according to the prosecution case. There were no visible injuries on the person of CW. 1 as found in Ex. P5, therefore, no specific overt acts are proved against A1 to A4. He further submits that A5 does not belong to the family of A1 to A4. Therefore, sharing common object or common intention does not arise. It is further submitted that prosecution has not produced any materials to prove that there was any intention of committing murder of CW. P5, therefore, no specific overt acts are proved against A1 to A4. He further submits that A5 does not belong to the family of A1 to A4. Therefore, sharing common object or common intention does not arise. It is further submitted that prosecution has not produced any materials to prove that there was any intention of committing murder of CW. 1 and under the circumstances, he submits that the conviction under Section 307 IPC is bad in law and same is liable to be set aside. It is also his submission that except injured P.W. 1, no other witnesses have supported the case of the prosecution and version of P.W. 1 alone in the background of enemity between them is not sufficient to convict the accused. Accordingly, he submits that A1 to A4 may be acquitted of the offences charged against them. 6. Sri Vijaya Kumar Majage, learned HCGP submits that Ex. P6, the extract of the accident register produced by the prosecution dearly indicates that the accused Nos. 1 to 4 along with accused No. 5 have committed the offences and therefore, the evidence of P.W. 1 along with the evidence of P.W. 4, is a conclusive proof that all the accused have committed offences against P.W. 1. Therefore, the order of conviction is based on the evidence on record and does not call for interference. He, therefore, submits that the appeal may be dismissed by confirming the order of conviction and sentence. 7. The prosecution in this case commenced with the recording of the statement of the injured Sajjan Rao Kaddam in the K.R. Hospital Mysore on 20.10.1991 at about 3.00 p.m. In the said complaint, he has stated that he is working as conductor in KSRTC, Mandya. On 17.10.1991, after completion of his duty he came to his house and on 18.10.1991 at about 3.00 p.m. he had been to his land, at that time the she-buffaloes belonging to the owner of the neighbouring land were grazing in his land and, therefore, he was chasing the she-buffaloes. At that time all the accused persons came running to his land by jumping over the fence and thereafter, they abused him and started quarrelling. There was dispute between himself and the accused persons regarding the property and a case was pending before the Hunsur Court. At that time all the accused persons came running to his land by jumping over the fence and thereafter, they abused him and started quarrelling. There was dispute between himself and the accused persons regarding the property and a case was pending before the Hunsur Court. The accused thereafter, came near him, A2 and A3 Parvati Bai and Uma Bai respectively held his private part tightly and fell him down. A4 Suma Bai kicked him by means of legs on his private parts and Al Mahadev Rao Gatge asked A5 Panduranga Rao Kadam to bring a chopper and accordingly, Panduranga Rao Kadam brought a chopper. Mahadev Rao Gatge-A1 held him tightly and Panduranga Rao Kadam assaulted him by means of chopper on his left hand. Thereafter, he assaulted him on his neck and caused injuries on him. At that time, one Vishwanatha Rao, Shira Sagar and Hala Naik came running near the scene of occurrence and they extricated him from the clutches of the accused and he was thereafter, removed to K.R. Nagar General Hospital. The doctor at K.R. Nagar General Hospital advised him to go to the K.R. Hospital, Mysore and he has taken treatment in K.R. Hospital, Mysore. Based on the said statement of the injured Sajjan Rao Kadam, the Hunsur Rural Police registered a case in crime No. 297/1991 for the offences punishable under Sections 341, 447, 323 and 324 read with 34 IPC. On completion of the investigation, having found that CW. 1. has suffered grievous injuries a charge was framed for the offence under Section 326 IPC. After summoning the accused before the Court, the learned JMFC at Hunsur commenced trial and got examined two witnesses and thereafter, the prosecution filed an application before the learned Magistrate praying that having regard to the severity of the offence, the matter may be committed to the Court of Sessions. The learned Magistrate rejected the said application filed by the prosecution. Prosecution thereafter, approached the learned Sessions Judge, Mysore and by order dated 16.11.1995, passed in Crl. R.P. No. 85/1994, the learned Sessions Judge directed that the application filed by the prosecution be allowed and also observed in the said order that facts discloses the offence punishable under Section 307 IPC. Prosecution thereafter, approached the learned Sessions Judge, Mysore and by order dated 16.11.1995, passed in Crl. R.P. No. 85/1994, the learned Sessions Judge directed that the application filed by the prosecution be allowed and also observed in the said order that facts discloses the offence punishable under Section 307 IPC. Therefore, the case was directed to be committed to the Court of Sessions, Mysore, Accordingly, the case was committed to the Court of Session and the learned Sessions Judge took cognizance of the offence. 8. After hearing the prosecution and the accused regarding the charge, the learned Sessions Judge framed charge against the accused for the offence mentioned above, including one under Section 307 IPC and thereafter, the prosecution has examined all the witnesses. 9. P.W. 1 Sajjan Rao Kaddam has reiterated the version mentioned by him in the complaint. He has also identified the complaint as Ex. P1 and also the chopper used by A5 as M.O. 1. He further identified his clothes as M.Os. 2 to 4. He has stated that he is not able to work by left hand due to the injuries caused by the accused. In the cross-examination, it is elicited that there are certain improvements in his evidence before the Court, than the one found in the complaint. It is elicited that he has not stated before the police that A2 to A4 had told A5 to bring the chopper. Further, it is elicited that he has not stated before the police that A2 has come from behind and held him, similarly certain omissions of P.W. 1 has been elicited in the cross-examination. It is suggested to him that A2 to A4 have never come to the scene of occurrence and he has falsely implicated A2 to A4 in the case. P.W. 2 Dasharath Rao Ghatge has turned hostile to the case of the prosecution so also P.W. 3 Hala Naik. P.W. 4 Dr. Muralidhar has stated that on 18.10.1991 at 4.30 p.m., he has examined P.W. l who had come with a history of assault by the accused. He has stated that P.W. 1 has sustained 4 injuries on his person and he has issued Ex. P4-wound certificate in respect of P.W. 1. P.W. 4 Dr. Muralidhar has stated that on 18.10.1991 at 4.30 p.m., he has examined P.W. l who had come with a history of assault by the accused. He has stated that P.W. 1 has sustained 4 injuries on his person and he has issued Ex. P4-wound certificate in respect of P.W. 1. He has referred P.W. 1 to the K.R. Hospital and on the opinion given by the doctor from K.R. Hospital, he has opined that the injury No. 3 suffered by P.W. 1 is grievous in nature and other injuries are simple in nature. In the cross-examination, it is elicited that he has given two memos seen by him in the Court and that, thinking that first memo would have missed, he has sent the second memo to the police and he has not stated the name of the accused in the said memo nor the history of the assault. In the further examination, P.W. 4 has stated that he has produced the accident register as per Ex. P6 and Ex. P6 (b) is the relevant page. In the cross-examination, he has stated that whatever he has stated in the accident register should find a place in the wound certificate, P.W. 5 Madaiah is the PSI of Hunsur Rural Police Station during the relevant period but has filed charge-sheet after receiving wound certificate and other records. P.W. 6 Dr. Anandappa was working as Assistant Surgeon at K.R. Hospital, Mysore. He has stated that on 18.10.1991, he has examined P.W. 1 who has suffered 5 injuries including one sutured deep wound and opined that injury No. 5 was grievous in nature and issued Ex. P7 wound certificate. P.W. 7 has turned hostile to the case of the prosecution. P.W. 8 is the witness to the seizure of clothes M.Os. 2 to 4 of the complainant and has drawn the mahazar Ex. P2 and his signature is found on Ex. P2(b). P.W. 9 is head constable who has conducted the investigation in this case. He has recorded the statement of the complainant and after registering the case in crime No. 297/91 further conducted the spot mahazar and obtained the documents and handed over further investigation to P.W. 6. 10. It is from the evidence of the above witnesses, the learned Sessions Judge has found the accused guilty and has convicted and sentenced them as aforesaid. 11. 10. It is from the evidence of the above witnesses, the learned Sessions Judge has found the accused guilty and has convicted and sentenced them as aforesaid. 11. On a careful consideration of the material on record, it is seen, that the first, document brought into existence in this case is Ex. P6 which is the extract of the accident register maintained at the General Hospital at Hunsur. Prosecution has produced Ex. P4, which is the wound certificate based on Ex. P6. It has to be observed that Ex. P4 does not contain the history whereas Ex. P6 contains the history of assault. P.W. 4 has stated before the Court that whatever is contained in the accident register shall be mentioned in Ex. P4 whereas, there is discrepancy between Exs. P4 and 6. Ex. P4 was issued on 21.12.1991 by P.W. 4 and Ex. P6 was brought before the Court on the date of his further examination, the discrepancy at Exs. P4 and P6 is not explained by prosecution. So far as the contents of Ex. P4 is concerned there is no name of the assailants or the weapons or the time of incident, which merely records as due to assault and injuries. Exs. P5 and P6 are intimations to the police sent by P.W. 4, which also does not, contain the names of assailants. Therefore, I am of the opinion that Ex. P6 cannot be relied on for the purpose of this case. The relevant document is Ex. P1-the complaint recorded by the police P.W. 9 in the K.R. Hospital, Mysore. The said statement has been recorded on 20.10.1991, at about 3 p.m., that is, after 47 hours of the date of the incident. The said Ex. P1 contains all the names of 5 accused persons and each accused is given a specific overt act, Ex. P4 is the wound certificate and the evidence of P.W. 4 do not refer to any injuries corresponding to the overt acts of A2 to A4, who are women folk of the house of accused No. 1. So far as the part, played by the Al is concerned, Ex. P6 does not contain his name, the first document produced by the prosecution and Ex. P5 does not contain the name of A1. So far as the part, played by the Al is concerned, Ex. P6 does not contain his name, the first document produced by the prosecution and Ex. P5 does not contain the name of A1. It is seen that there is old enemity regarding property dispute between complainant and A1, who is the owner of the adjacent land and case is pending before the Civil Court, Hunsur. Under the circumstances, the possibility of falsely implicating the members of family of A1 is not ruled out, more particularly, when there are no specific injuries consequent to the overt acts alleged against Al to A4. So far as A5 is concerned, Ex. P1 contains specific overt acts of assault by chopper which has been spoken to by P.Ws. 4 and 2 and corresponding injuries on the person of P.W. 1 are found. Under the circumstances, I am of the opinion that the prosecution has proved the case against A5 where as the evidence regarding participation and presence of A1 to A4 is doubtful and therefore, Al to A4 are entitled for benefit of doubt. Accordingly, Al to A4 are acquitted of the offence levelled against them. In so far as the nature of the injuries caused by A5 is concerned, it is seen, that A5 had nothing to do with A1 and P.W. 1. It is also not mentioned anywhere that A5 is either related or interested in the dispute between Al and P.W. 1 and his family. Except that he is the owner of the adjoining land and she-buffalo of A1 was grazing in his land, which is a silly reason for the assault, there was absolutely no enemity between A5 and P.W. 1. Under the circumstances, act committed by A5 amounts to an offence punishable under Section 335 IPC, since P.Ws. 4 and 6 categorically state that P.W. 1 has suffered grievous injury and therefore, I hold that A5 is liable to be convicted for the offence punishable under Section 335 IPC and sentence him to undergo R.I. for a period of 2 years and to pay fine of Rs. 1,000/- in default, to suffer S.I. for one month. It is stated that A5 has already suffered sentence of more than 2 years and therefore, he need not surrender before the trial Court, for serving any more sentence. 1,000/- in default, to suffer S.I. for one month. It is stated that A5 has already suffered sentence of more than 2 years and therefore, he need not surrender before the trial Court, for serving any more sentence. Bail bonds of all the accused are cancelled and fine amount, deposited by Al to A4 if any, is directed to be refunded to them.