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2013 DIGILAW 960 (KAR)

Siddegowda v. State of Karnataka

2013-08-21

B.V.PINTO

body2013
Judgment : 1. This appeal is filed challenging the Judgment dated 01.08.2006 passed by the III Additional Sessions Judge, Mysore, in S.C.No.342/2002 convicting the appellants for the offences under Sections 148, 324 and 506(1) of IPC read with Section 149 of IPC and sentencing each of them to pay a fine of Rs.1,000/-in default to suffer S.I. for one month, further convicting them for the offence under Section 326 of IPC read with Section 149 of IPC and sentencing each of them to undergo R.I. for six months and to pay a fine of Rs.2,000/- in default to suffer S.I. for two months with a direction to pay compensation to the injured witnesses. 2. It is the case of the prosecution that on 24.03.2002 at about 7.00 p.m., all the accused formed themselves into an unlawful assembly and holding choppers in front of Maramma Temple in Mavinahalli Village, with common object of assaulting P.W.1 committed riot and thereafter accused No.1, Siddegowda assaulted with chopper on the left side of the head and ear of P.W.1 Nagesh and accused No.6, Rajegowda assaulted with chopper to left hand of P.W.1 Nagesh and accused No.1 Siddegowda also assaulted with chopper to the right side of forehead, left side of right shoulder and right cheek of Manju, accused No.2 assaulted with chopper to the back, chest and right arm of P.W.6 Siddesh and accused No.4, Shivannegowda assaulted with chopper to nose and right hand of P.W.2 Ramesh and accused No.5 Krishnegowda assaulted with chopper to the right side of the head and right hand of P.W.15, Smt.Siddamma with an intention to endanger their life and thereby they are alleged to have committed the offences under Sections 147, 148, 307, 324 and 506(2) of IPC read with Section 149 of IPC. 3. It is the further allegations against the appellants that on the same date, time and place, the accused have assaulted aforesaid injured persons with an intention to cause simple injuries and have infact caused injuries to P.W.1 Nagesh, P.W.2 Ramesh and P.W.15 Smt.Siddamma and thereby they have alleged to have committed the offence under Section 324 of IPC read with Section 149 of IPC. 4. It is further alleged that on the same date, time and place, the accused have threatened the aforesaid injured persons, thereby they are alleged to have committed the offence under Section 506(1) read with Section 149 of IPC. 4. It is further alleged that on the same date, time and place, the accused have threatened the aforesaid injured persons, thereby they are alleged to have committed the offence under Section 506(1) read with Section 149 of IPC. 5. The prosecution in order to prove the case examined in all 16 witnesses and got marked Exs.P-1 to P-12 and produced M.O.Nos.1 to 11. Defence of the accused was one of total denial. However, by the impugned Judgment, the learned Sessions Judge was pleased to convict the accused as aforesaid and sentenced them accordingly. It is this Judgment of conviction and sentence which has been challenged by the appellants in this appeal. 6. The prosecution in this case commenced with filing of a complaint by one D.Lingegowda, S/o Devegowda before the Jayapura Police Station, Mysore Taluk. In the complaint, it is stated by the complainant that he is residing with his son and other family members and that on 22.03.2002 at about 6.00 p.m., when his relative by name Manju was running a scooter in front of Maramma Temple in their village, all the accused by name, Siddegowda, Kempegowda, Karigowda, Conductor Shivannegowda, Krishnegowda, Rajegowda and Siddesh obstructed the said Manju at about 6.00 p.m., and thereafter abused him and quarreled with him. At that time, people gathered there, pacified both the parties and sent them to their house. With this incident in mind on 24.03.2002 at about 7.00 p.m., the aforesaid accused came and assaulted his son, Nagesh on his back, chest and left ear. It is stated that Siddesh assaulted Nagesh and also Manju. Kempegowda and Karigowda assaulted Siddesh with chopper on his back, chest, left shoulder and left arm and caused bleeding injuries. Conductor Shivannegowda and Rajegowda assaulted Ramesh by chopper on his nose and on his right hand and caused bleeding injuries. Krishnegowda and Siddesh, S/o Siddegowda assaulted Doddathayamma, W/o Siddegowda by chopper on her left arm and caused bleeding injuries. At that time, the villagers by name Ningegowda, S/o Ningarajegowda and another Ningegowda, S/o Bhochegowda came and separated them and thereafter the injured were taken to K.R. Hospital, Mysore. Hence action was requested against the accused. Based on the above complaint, Jayapura Police registered a case in their Crime No.15/2002 for the offences under Sections 341, 143, 147, 148, 324, 506, 307 read with Section 149 of IPC and commenced investigation. Hence action was requested against the accused. Based on the above complaint, Jayapura Police registered a case in their Crime No.15/2002 for the offences under Sections 341, 143, 147, 148, 324, 506, 307 read with Section 149 of IPC and commenced investigation. On completion of investigation, police filed a charge sheet against six persons leaving the accused No.7 Siddesh as no evidence was forthcoming against him. 7. Heard Sri.H.S.Chandramouli and Sri.Mallikarjun S.Masali, learned counsel appearing for appellants and Sri.Satish R.Girji, learned HCGP appearing for the State. 8. Learned counsel for the appellants submits that the complaint given by P.W.5 does not indicate the place where the incident has happened, therefore he submits that the very happening of the incident is not brought forth correctly in the complaint itself and it is doubtful as to whether the incident as alleged has happened at the place mentioned by the witnesses in witness box. It is also further submitted by him that there was a counter case in S.C.No.6/2003 against the witnesses herein and the said case has been tried before the Sessions Court, the charges being framed against them. However, P.Ws.1 to 3 have suppressed the fact of injuries sustained by the accused and therefore they have not come up with a true story regarding the incident. It is further submitted by him that the weapons in this case recovered at the instance of one of the accused as per the evidence of P.W.1. This recovery will not enure to the benefit of the prosecution. It is also further submitted by him that the prosecution witnesses have not identified individual weapons with reference to the injuries caused on their persons and therefore he submits that the order of conviction may be set aside and the accused may be acquitted. 9. Sri.Satish R.Girji, learned HCGP on the other hand submits that the evidence of witnesses clearly indicates that the accused have formed themselves into an unlawful assembly and have caused injuries to P.Ws.1, 2, 6 and 15 and also one Manjunath, who has died subsequently and that they have suffered injuries as per the wound certificates produced as per Exs.P-7 to P-11 in this case. He further submits that P.W.13, Dr.Latha had stated before the Court that she has examined the witnesses and has given wound certificates showing that that the injured have sustained injuries. He further submits that P.W.13, Dr.Latha had stated before the Court that she has examined the witnesses and has given wound certificates showing that that the injured have sustained injuries. Hence he submits that the order of conviction passed by the learned Sessions Judge is based on the evidence on record and is neither perverse nor against the settled principles of law. Hence he submits that the appeal may be dismissed. 10. P.W.1 Nagesh is one of the injured persons. He has stated that on 24.03.2002 at about 7.00 p.m., he was coming out of the park and at that time all the accused persons came in a group holding choppers in their hand. He has also stated that the first accused has told that he will commit the murder and assaulted him on his head by means of a chopper. Accused No.6 Rajegowda also assaulted him on his left hand, accused No.3 Karigowda also assaulted on his left finger, which caused injuries on him. Accused No.4 Shivannegowda also assaulted him. Accused No.5 Krishnegowda assaulted Ramesh, P.W.2, who came to intervene. Accused No.3 Karigowda also assaulted Smt.Siddamma by means of a chopper. All of them sustained injuries and at that time Ningegowda, Kempegowda and another person came and extricated them from the accused and thereafter they have taken the injured to K.R. Hospital. In the cross examination, it is suggested that even the accused would have sustained injuries, which suggestion has been admitted by P.W.1. 11. P.W.2 Ramesh is also another injured person, who has also stated in similar terms regarding the assault. 12. P.W.3 Ningegowda is an eye witness to the incident. He has also stated that all the six accused have assaulted Nagesh, Siddamma, Ramesh, Siddegowda and Manju. He has stated that he has separated the accused from the injured persons and thereafter accompanied the injured to the Hospital. He has identified M.Os.3 to 7 as the weapons used by the accused. 13. P.W.4 Ningegowda is also a witness to Exs.P-2 and P-3, which are panchanamas regarding seizure of weapon and scene of offence respectively. He has stated that four weapons were seized at the instance of the accused No.1 Siddegowda as per Ex.P-2. 14. P.W.5 Lingegowda is the father of Nagesh, P.W.1. He is also an eye witness to the incident. 15. P.W.6 Siddesh is another injured person, who has also corroborated the evidence of other witnesses. He has stated that four weapons were seized at the instance of the accused No.1 Siddegowda as per Ex.P-2. 14. P.W.5 Lingegowda is the father of Nagesh, P.W.1. He is also an eye witness to the incident. 15. P.W.6 Siddesh is another injured person, who has also corroborated the evidence of other witnesses. 16. P.W.7 Karigowda, who is a witness to Ex.P-3 spot mahazar, has also identified the clothes of the injured persons produced before the Court. 17. P.W.8 Kempegowda, P.W.9 Putta Swamachary, P.W.10 Basavegowda, have turned hostile to the case of the prosecution. The other witnesses examined in this case are formal in nature. 18. P.W.13, Dr.Latha has stated that she examined the injured persons, namely P.Ws.1, 2, 6 and 15 and also one Manjunath, who died subsequently and issued wound certificates as per Exs.P-7 to P-11 respectively. She has stated that the injury sustained by P.W.2 Ramesh is grievous in nature. However, no x-ray has been produced by her nor the same is marked in the case. 19. P.W.16 K.Mahadevappa is the P.S.I., who has conducted the investigation and filed the charge sheet in the case. 20. It is seen from the above materials that all the witnesses speak about the incident that had happened on the date as alleged by the prosecution. The learned Sessions Judge has convicted the accused for the offence under Section 326 of IPC. Except the oral testimony of P.W.13, Dr.Latha, no documents are produced to show that the injured had sustained any grievous injuries and no x-ray has been produced. In that view of the matter, the accused are liable to be convicted for the offence under Section 324 of IPC instead of Section 326 of IPC. So far as the offences under Sections 148, 324 and 506(1) read with Section 149 of IPC, the evidence of independent witness, namely P.W.3 corroborate the evidence of the injured witnesses, which is further corroborated by the evidence of Medical Officer. In that view of the matter, I hold that the prosecution has proved beyond reasonable doubt that the accused have committed the offences under Sections 148, 324 and 506(1) read with Section 149 of IPC and conviction for the offence under Section 326 of IPC is erroneous. In that view of the matter, I hold that the prosecution has proved beyond reasonable doubt that the accused have committed the offences under Sections 148, 324 and 506(1) read with Section 149 of IPC and conviction for the offence under Section 326 of IPC is erroneous. Sri.H.S.Chandramouli, learned counsel for the appellants submits that the accused are villagers and that there was counter case pending against them and the incident has happened more than ten years prior to this day and hence having regard to the fact that the accused are villagers, provisions of Probation of Offenders Act may be applied. Having regard to the fact that there are no other incident reported or filed against the appellants and that their conviction is only for the offence under Section 324 of IPC, I deem it fit to apply the provisions of Probation of Offenders Act to the accused. Hence, I pass the following: ORDER The appeal is partly allowed. The order of conviction for the offence under Section 326 read with Section 149 of IPC is set aside. The order of conviction for the offences under Sections 148, 324 and 506(1) read with Section 149 of IPC is confirmed. So far as sentence is concerned, the accused are directed to be released under Section 3 of the Probation of Offenders Act and they are directed to execute a bond for Rs.10,000/- each with one surety for the likesum to the satisfaction of the Trial Court to keep good conduct for a period of one year from the date of executing the bond. The appellants shall execute the bond within one month from today before the Trial Court. It is stated that the accused No.4 is a Government Servant. This order of conviction shall not come in the way of his employment. Fine, if paid, shall be refunded to the accused.