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Karnataka High Court · body

2013 DIGILAW 914 (KAR)

VENKATAPPA v. STATE OF KARNATAKA

2013-08-13

A.S.PACHHAPURE

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JUDGMENT A.S. PACHHAPURE, J.-The appellants have challenged their conviction and sentence for the offences punishable under Sections 143, 148, 324, 326 and 427 read with Section 149 IPC on a trial held by Fast Track Court-III, Bangalore. 2. The facts relevant for the purpose of these appeals are as under: Accused No. 7-Shankara was indulged in chit business. PW1-Narasimhaiah was contributing a sum of Rs. 1,000/- per month in the said business and the chit was being opened on 14th of every month. In the month of May 2002 accused No. 7 opened the chit a day earlier to 14th May and in that context on 14.5.2002 at 8.30 p.m. accused No. 12 Kamala the wife of accused No. 7 and his sister i.e. accused No. 11 Gowri came to the house of PW1 Narasimhaiah and demanded the contribution. At that time PW1complained having opened the chit a day earlier and having come to the house to demand the sum in the night and there was a quarrel in this regard on that day. 3. On 15.5.2002 at about 9.30 p.m. accused Nos. 1 to 15 (the appellants in both these appeals) formed an unlawful assembly and armed with clubs, choppers, crowbars etc., came to the house of PW1 Narasimhaiah and accused No. 1 is said to have assaulted PW2 Balaraj with chopper, whereas, accused No. 2 is said to have assaulted him with the club. PW2 Balaraj sustained injuries. Accused Nos. 3 and 4 also attempted to assault him. When PW1 Narasimhaiah went and questioned the accused, accused No. 4 said to have damaged the window and accused Nos. 3 and 5 gained entry into the house. Accused No. 5 assaulted PW1 Narasimhaiah with the club on the left arm and caused a severe injury. Accused Nos. 3, 6 and 7 also bet him. When he fell down, his wife PW3 Yeshodamma was lifting him and at that time accused Nos. 12, 13 and 14 assaulted her with the clubs. PW4 Dhanalakshmi intervened, accused Nos. 3, 4 and 15 assaulted her with the clubs. When PW13 B.C. Ramu intervened, accused Nos. 3, 9, 10 and 11 assaulted Gurumurthy and PW13 Ramu and later they damaged the Herohonda motorcycle and threw pelted stones and blocks at the door, window and caused damage. 12, 13 and 14 assaulted her with the clubs. PW4 Dhanalakshmi intervened, accused Nos. 3, 4 and 15 assaulted her with the clubs. When PW13 B.C. Ramu intervened, accused Nos. 3, 9, 10 and 11 assaulted Gurumurthy and PW13 Ramu and later they damaged the Herohonda motorcycle and threw pelted stones and blocks at the door, window and caused damage. PW10 Chikkanna is said to have intervened to rescue the injured persons, thereby the accused having threatened to destroy the house said to have went away from the house of PW1 Narasimahaiah. PW2 Balaraj was shifted to Bangalore for treatment and PW1 Narasimahaiah, his wife PW3 Yeshodamma were shifted to the Government Hospital. In the circumstances, PW1 Narasimhaiah submitted his complaint Ex.P1 at 11.30 p.m. and PW12 Rajanna, ASI registered the said complaint in Crime No. 73/2002 for the offences punishable under Sections 143, 147, 148, 324, 427, 307 read with Section 34 IPC and sent the complaint Ex.P1, the FIR Ex.P7 to the Magistrate through PW11 Chowdegowda, the Police Constable. During the investigation under the mahazar Ex.P2 MOs.1 to 10, 16 and 17 were seized in the presence of PW5 and 6. Statements of the witnesses were recorded. The bloodstained shirt of PW2 (MO18) was seized under the mahazar Ex.P3 in the presence of PW6 and another. On the arrest of accused No. 1 and on interrogation, he volunteered to produce the chopper MO.19 and in the presence of PWs.7 and 8 he led them and produced the chopper which was seized under the Mahazar Ex.P4. At the instance of accused No. 4, crowbar MO.14 was produced and was seized under Ex.P5 in the presence of PW9 and another. The injury certificate Exs.P8 to P10 were collected. On completion of the investigation the charge sheet was laid against the accused for the aforesaid offences. During the trial the prosecution examined PWs.1 to 18, got marked the documents Exs.P1 to P12 and MOs.1 to 19. The statement of the accused was recorded under Section 313 Cr.P.C. No defence evidence was led. Ex.D1 the discharge certificate was got marked in the course of the cross-examination. During the trial the prosecution examined PWs.1 to 18, got marked the documents Exs.P1 to P12 and MOs.1 to 19. The statement of the accused was recorded under Section 313 Cr.P.C. No defence evidence was led. Ex.D1 the discharge certificate was got marked in the course of the cross-examination. The trial Court heard respective counsel for the parties and on appreciation of the material on record convicted the accused for the offences punishable under Sections 143, 148, 324, 326 and 427 read with Section 149 IPC and ordered them to undergo rigorous imprisonment for three years and to pay fine of Rs. 1,000/- for the offence under Section 326 IPC and lesser sentence was ordered for other offences. Aggrieved by the conviction and sentence, accused Nos. 1, 2, 4 to 6 and 13 have preferred Criminal Appeal No. 795/2006 and the other accused have preferred Criminal Appeal No. 864/2006. 4. I have heard the learned counsel for the appellants in both the appeals and also the learned High Court Government Pleader. 5. The point that arise for my consideration is: "Whether the appellants have made out any grounds to warrant interference in their conviction and sentence for the offences punishable under Sections 143, 148, 324, 326 and 427 read with Section 149 IPC?" 6. It is the submission of the learned counsel for the appellants that except the injured PWs.1 to 4 and 13, the Assistant working under PW2, none others have supported the case of the prosecution and therefore he contends that the conviction and sentence ordered by the trial Court is erroneous and illegal. So also he would contend that their evidence is not consistent, cogent and trustworthy and that the injured have concocted a false case to implicate all the members of the family of the appellants. It is also his submission that the sentence ordered is on the higher side and there are number of mitigating circumstances to reduce the sentence. On these grounds he has sought for setting aside the conviction and sentence. 7. On the other hand learned High Court Government Pleader supporting the judgment and order of the Court below contend that PWs.1 to 4 are the injured persons and their evidence is corroborated by the medical evidence and therefore he submits that the appellants have not made out any grounds to warrant interference. 8. 7. On the other hand learned High Court Government Pleader supporting the judgment and order of the Court below contend that PWs.1 to 4 are the injured persons and their evidence is corroborated by the medical evidence and therefore he submits that the appellants have not made out any grounds to warrant interference. 8. As could be seen from the material placed on record, the motive that has been put forth by the prosecution is that, accused No. 7 opened the chit a day earlier and wife of accused No. 7 and his sister went for demanding the contribution from PW1and in this context there was a quarrel between PW1, accused Nos. 12 and 13. This quarrel occurred a day earlier to the incident. So far as the motive aspect is concerned, when the prosecution relies upon the evidence of eyewitness particularly the injured, the motive does not play an important role. Anyhow, there is consistent and cogent version in the evidence of the aforesaid witness to prove the quarrel a day before the incident. It is on 15.5.2002 at 9.30 p.m. the accused said to have come to the house of PW1 Narsimhaiah armed with weapons like choppers, clubs, crowbar etc., PW1 in his evidence states that PW2 was assaulted by accused No. 2, whereas, accused No. 1 assaulted PW2 with the chopper, accused Nos. 3 and 4 also said to have assaulted PW2 with the club and the blow fell on the left arm of PW1. He sustained severe injury and fell to the ground. At that time, accused Nos. 3, 6 and 7 also assaulted him and whenPW3 intervened, she was assaulted by accused Nos. 12, 13 and 14. PW4 was assaulted by accused Nos. 3, 4 and 15 and PW13 was assaulted by accused Nos. 8, 9, 10 and 11. Though in the evidence that has been led by the prosecution there are some discrepancies as to the role of each of these accused at the time of assault, it is the consistent version of PW1 both in the complaint and also in his evidence that it is accused No. 5 who gave the blow with the club on his left arm and thereby he sustained a fracture. 9. 9. So far as accused No. 2 is concerned, though in the complaint there is a reference of his role in the assault on PW2, PW2 does not speak about the assault on him by accused No. 2. That apart accused No. 2 is said to be 86 years old at the time of the incident and his presence at the time of the incident appears to be doubtful. 10. The prosecution has produced the injury certificate and PW2 was examined by PW14 and issued the injury certificate Ex.P8, whereas, PWs.1 and 3 were examined by PW16 and the injury certificate Exs.P9 and P10 have been produced. The perusal of the injury certificate of PW2 Balaraj son of PW1 reveals that he has sustained a lacerated wound over the occipital region measuring 3 × 2 cms., scalp deep. This injury is said to be a simple injury. PW3 Yeshodamma was examined by PW16 and the injury certificate is produced at Ex.P10. She has sustained a swelling about 11/2? diameter on the left occipital region. This injury also a simple injury. PW1 Narasimahaiah was examined by PW16 and the injury certificate Ex.P9 reveals as many as 4 injuries. (i) Swelling on the left upper arm. (ii) Contusion on the right side of the back, (iii) Contusion 3x1 cms. on the anterior aspect of the right upper arm. (iv) Multiple abrasions over the right palm and the x-ray reveal the fracture of the shaft of the humerus left upper arm. The doctor has certified that injury No. 4 is grievous and the rests are simple. 11. PWs.1 to 3 have stated about the treatment taken by the doctors and they were examined within an hour or so after the incident. While they were admitted for treatment, they have given the history of assault by accused Nos. 1 and 7 and his party men. This history given to the doctors is the earliest information to the doctors and therefore there is no reason to disbelieve the version with regard to the occurrence of the incident at the said place and given time. 12. The injured generally does not implicate an innocent and does not leave a person who has really caused the harm. This history given to the doctors is the earliest information to the doctors and therefore there is no reason to disbelieve the version with regard to the occurrence of the incident at the said place and given time. 12. The injured generally does not implicate an innocent and does not leave a person who has really caused the harm. In this context the evidence of the injured is important and though there is some inconsistency with regard to the role attributed, so far as causing of grievous injury to PW1 i.e. accused No. 5 who is responsible, as it is he who gave the blow on the left arm with the club. The conviction of other accused for the offence under Section 326 read with Section 149 IPC is improper for the reason that the other accused were not aware of the fact as to whether accused No. 5 would cause a grievous injury to PW1 or otherwise. The common object was only to assault and not to cause grievous injury. In the circumstances, I am of the opinion that the conviction ordered by the trial Court as against the other accused for the offence under Section 326 read with Section 149 IPC has to be set aside. 13. So far as the role of the accused , except accused Nos. 1, 3, 4, 5, 6, 7, 12 and 13, specific role has been spoken to by the witnesses, in respect of the others except by making a general statement about their presence at the time of the incident, no role of the said accused has been spoken to by the witnesses. That apart, the incident took place in the night at about 9.30 p.m. in the house of PW1 and the incident commenced in the front yard and the accused are said to have entered the house and caused the assault. In such circumstances, so far as the accused persons other than accused No. 5 are concerned, those against whom there is participation, they are accused Nos. 1, 3, 4, 6, 7, 12 and 13, whose presence having played a role for the incident are responsible for the offence under Section 324 read with Section 149 IPC. Having caused simple injuries to the other injured persons, conviction of the remaining accused for the aforesaid offence will have to be set aside. 14. The remaining accused i.e. accused Nos. Having caused simple injuries to the other injured persons, conviction of the remaining accused for the aforesaid offence will have to be set aside. 14. The remaining accused i.e. accused Nos. 2, 8, 9, 10, 11, 14 and 15 are entitled to an order of acquittal, as their role is not specifically stated by the injured witnesses. Though PW13 is examined and supported the case of the prosecution, he speaks the presence of all the accused and does not speak the overt act of any of the accused persons. The other eyewitnesses i.e. PW10 Chikkanna though examined has turned hostile to the prosecution and there is nothing incriminating against the accused in his evidence. So far as the damage to the property is concerned, it is only the aforesaid accused whose role is clear are responsible for the offence under Section 427 read with Section 149 IPC. So far as the sentence is concerned, accused No. 5 having committed an assault with the club and having caused grievous injury has to be awarded a reasonable sentence. So far as the accused who are convicted for the offence under Section 324 read with Section 149 IPC is concerned, apart from imprisonment for one month, they have to pay the fine as well. As they have caused damage to the property of PW1, are responsible to pay reasonable fine in terms of compensation and I think it just and proper to award fine for the offence under Section 427 IPC. Even for the offences under Sections 143 and 148 IPC are concerned, the fine amount appears to be just and proper. 15. In the result, the appeals are allowed in part. The appellant No. 2 (accused No. 2 in Criminal Appeal No. 795/2006) is acquitted of all the charges and the sentence is also set aside. The appellants No. 3 to 6, 8 and 9 (accused Nos. 8, 9, 10, 11, 14 and 15 in Criminal Appeal No. 864/2006 are acquitted of all the charges and their sentence is also set aside. The conviction of appellant No. 4, (accused No. 5 in Criminal Appeal No. 795/2006) for the offence under Section 326 IPC is affirmed. The sentence is modified. He is ordered to undergo rigorous imprisonment for one year and to pay fine of Rs. 5,000/-, in default to undergo simple imprisonment for three months. The conviction of appellant No. 4, (accused No. 5 in Criminal Appeal No. 795/2006) for the offence under Section 326 IPC is affirmed. The sentence is modified. He is ordered to undergo rigorous imprisonment for one year and to pay fine of Rs. 5,000/-, in default to undergo simple imprisonment for three months. The conviction of appellants No. 1, 3, 4, 5 & 6 (accused Nos. 1, 4, 5, 6 and 13 in Criminal Appeal No. 795/2006) and appellants No. 1, 2 and 7 (accused Nos. 7, 3 and 12 in Criminal Appeal No. 864/2006) for the offence under Sections 143, 148, 324, 427 read with Section 149 IPC is affirmed. The sentences are modified. They are ordered to undergo rigorous imprisonment for one month and to pay fine of Rs. 2,000/- each, in default to undergo simple imprisonment for 15 days for the offence under Section 324 read with Section 149 IPC. The sentence for the offence under Sections 143, 148 and 427 read with Section 149 IPC is modified and they are ordered to pay a fine of Rs. 1,000/- each, in default to undergo simple imprisonment for 15 days for the offence under Section 143 IPC, fine of Rs. 5,000/- each, in default to undergo simple imprisonment for one month each for the offence under Section 148 IPC and Rs. 5,000/- each, in default to undergo simple imprisonment for one month for the offence under Section 427 read with Section 149 IPC. The convicted appellants except appellant No. 4 (accused No. 5 in Criminal Appeal No. 795/2006) are acquitted of the charge under Section 326 read with Section 149 IPC. On deposit of the fine amount, a sum of Rs. 50,000/- shall be paid to PW1-Narasimhaiah and Rs. 5,000/- each shall be paid to PW2 Balaraj and PW3 Yeshodamma. The convicted appellants are entitled to set off under Section 428 Cr.P.C. The substantive sentences shall run concurrently.