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2014 DIGILAW 1099 (KAR)

STATE BY TERAKANAMBI POLICE v. SHIVAPPA

2014-12-17

N.ANANDA, PRADEEP D.WAINGANKAR

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JUDGMENT : Crl. A.No.695/2012 is filed by appellants (hereinafter referred as ‘accused Nos.1 to 4’) against the judgment of conviction for offences punishable under Sections 324 and 506 IPC. Crl.A.No.698/2011 is filed by the State against the judgment of acquittal of accused Nos.1 to 4 of offences punishable under Sections 326, 341, 114 IPC and also under Section 3(1)(x) of Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989. 2. We have heard Sri. P. Mahesha, learned counsel for accused Nos.1 to 4 and Sri. Vijayakumar Majage, learned Government Pleader for the State. 3. It is established from the evidence on record that this criminal case is an offshoot of a civil case which was pending between the parties. It is established from the evidence on record that late Doddarangaiah, father of PW.1Rangadasaiah had sold certain extent in lands bearing Sy.Nos.259 and 260 of Triyambakapura village, Gundlupet Taluk for valuable consideration under registered sale deed dated 05.04.1965 in favour of Gurumallappa (father of accused Nos.1 to 4). In the registered sale deed dated 05.04.1965, by inadvertence survey numbers were mentioned as 251 and 253 instead of mentioning correct survey numbers 259 and 260. Therefore, accused Nos.1 to 4 were constrained to file a suit against PW.1Rangadasaiah and others in O.S.No.129/2002 on the file of Civil Judge, (Sr. Dn.), Chamarajanagar. After contest, suit was decreed on 09.09.2004, against which PW.1Rangadasaiah was before this Court in R.F.A.No.11/2005. This Court by judgment dated 14.07.2008 dismissed the first appeal and confirmed the judgment of the Trial Court. Thus we find that on the date of incident viz., 18.11.2005 accused Nos.1 to 4 being lawful owners were in possession and enjoyment of lands bearing Sy.Nos.259 and 260. 4. It is the case of prosecution that on 18.11.2005, accused Nos.1 to 4 were tilling their land bearing Sy.No.259 by a Tractor. PW.4Srinath was the driver of the Tractor. At that time, PW.1Rangadasaiah came near that land and told the accused not to plough the land. Accused Nos.1 to 4 got enraged and abused PW.1 by taking out name of his caste. The accused fisted and assaulted PW1 with stones and caused injuries to him. Accused Nos.1 to 4 were tried for offences punishable under Sections 341, 324, 326, 506 r/w 114 IPC and also for an offence punishable under Section 3(1)(x) of Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989. The accused fisted and assaulted PW1 with stones and caused injuries to him. Accused Nos.1 to 4 were tried for offences punishable under Sections 341, 324, 326, 506 r/w 114 IPC and also for an offence punishable under Section 3(1)(x) of Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989. The learned Sessions Judge acquitted accused Nos.1 to 4 of offences punishable under Sections 326, 341 r/w 114 IPC and also under Section 3(1)(x) of Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989. The learned Sessions Judge convicted accused Nos.1 and 2 for an offence punishable under Section 324 IPC and sentenced them to pay fine of Rs.3,000/each with default sentence of simple imprisonment for a period of two months. The learned Sessions Judge convicted accused Nos.3 and 4 for offences punishable under Section 506 IPC and sentenced them to pay fine of Rs.2,000/each with default sentence of simple imprisonment for a period of one month. The State is aggrieved by the judgment of acquittal of accused Nos.1 to 4 and accused Nos.1 to 4 are aggrieved by the judgment of conviction for the aforestated offences. 5. In preparagraph we have narrated the background of incident. After going through the evidence of PW.1 and the judgment of this Court in R.F.A.No.11/2005, we find that on the date of incident, disputed land (land bearing Sy.No.259) of Triyambakapra village was in lawful possession and enjoyment of accused Nos.1 to 4. PW.1 had suffered decree before the Trial Court. PW1 had gone near the land bearing Sy. No.259 to obstruct accused Nos.1 to 4 from ploughing the land at about 11.30 a.m. on 18.11.2005. It is alleged that accused Nos.1 to 4 had assaulted PW.1 and also abused him by taking out the name of his caste. In our considered opinion, the civil litigation had ended in favour of accused Nos.1 to 4, therefore, the question of accused abusing PW.1 by taking out the name of his caste did not arise. PW.1 was aggrieved because accused Nos.1 to 4 were tilling the land when R.F.A.No.11/2005 filed by PW.1 Rangadasaiah was pending before this Court. We have gone through the order sheet of R.F.A.No.11/2005. We do not find this Court had stayed operation of the decree made in O.S.No.129/2002. PW.1 was aggrieved because accused Nos.1 to 4 were tilling the land when R.F.A.No.11/2005 filed by PW.1 Rangadasaiah was pending before this Court. We have gone through the order sheet of R.F.A.No.11/2005. We do not find this Court had stayed operation of the decree made in O.S.No.129/2002. Thus the effort made by PW.1 that accused Nos.1 to 4 were aggressors and they were ploughing his land is an exercise in futility. PW.1 had suffered decree in the suit filed by accused Nos.1 to 4 in O.S.No.129/2002. Therefore, PW.1 should not have asserted that he was the owner of land and accused Nos.1 to 4 should not plough land. 6. Another striking feature is the inordinate delay in lodging first information. As per the evidence of PW.1Rangadasaiah, incident of assault had taken place at 11.30 a.m. on 18.11.2005 in land bearing Sy.No.259 of Triyambakapura village. The first information was lodged by PW.1 at 7.30 p.m. on 22.11.2005 with Terakanambi Police Station which is at a distance of 7 km from the place of incident. PW.1 has not offered any explanation for inordinate delay of four days in lodging first information. It is seen from medical evidence of PW.12Dr.R.Srinivas and contents of wound certificate marked as Ex.P14 that PW.1Rangadasaiah was examined by Dr. V.B. Chinnaswamy at 9.45 p.m. on 18.11.2005 in General Hospital, Gundlupet. As per the wound certificate (Ex.P14), PW.1Rangadasaiah had suffered following injuries: i) Bleeding per mouth was present O/E loss of left 1st molar tooth on upper jaw. Dentist opinion taken. Tooth fallen due to trauma and fresh clot was found in the socket. General periodontitis present. ii) Contusion over the left side of face, involving eyebrow, left side of orbit and cheek. iii) C/s Tinnitus of left ear. 7. Before adverting to oral evidence of PW.1 and the nature of injuries, it is relevant to notice that as per evidence of PW.1Rangadasaiah, he had suffered injuries at 11.30 a.m. on 18.11.2005. However, he had gone to General Hospital at Gundlupet at 9.45 p.m. on 18.11.2005. The distance between the place of incident and General Hospital, Gundlupet is about 10 km. If PW.1 had suffered injuries at 11.30 a.m. there was no reason for him to wait upto 9.00 p.m. (night) to go to Hospital. However, he had gone to General Hospital at Gundlupet at 9.45 p.m. on 18.11.2005. The distance between the place of incident and General Hospital, Gundlupet is about 10 km. If PW.1 had suffered injuries at 11.30 a.m. there was no reason for him to wait upto 9.00 p.m. (night) to go to Hospital. We find from the evidence of PW.1 that he has not deposed that he had gone to General Hospital at Gundlupet for treatment of injuries either on the date of incident or on the subsequent date. It is true that PW.1 is an illiterate person. However, he could not have lost sight of the fact or forgotten his visit to Hospital if he had visited Hospital at Gundlupet. PW.1 has not deposed where he was treated for the injuries suffered by him. In the circumstances, evidence of PW.12 and contents of wound certificate (Ex.P14) would create reasonable doubt. Except PW.2Chikkarangaiah, other eye witnesses and immediate post occurrence witnesses have not supported the case of prosecution. 8. PW.2 Chikkarangaiah, who is the junior uncle of PW.1Rangadasaiah has deposed that on the date of incident PW1 was ploughing his land with a Tractor. At that time, quarrel took place between accused Nos.1 to 4 and PW.1. Accused Nos.1 to 4 fisted and assaulted PW.1 with stones. At this stage, it is relevant to refer to the evidence of PW.1 who has deposed that accused Nos.1 to 4 were tilling the land with a Tractor. The versions of PW.1 and PW.2 are contrary. PW.2 had deposed that accused Nos.1 to 4 fisted and assaulted PW.1 with stones without referring to specific overt acts of each of the accused. PW.2 has not deposed that PW.1 had suffered grievous injuries. PW.2 has deposed that immediately after the incident PW.1 went to the Police Station which is not the evidence of PW.1. PW.2 has not deposed that accused Nos.1 to 4 abused PW.1 by taking out the name of his caste. In our considered opinion, evidence adduced by prosecution in proof of offences alleged against accused Nos.1 to 4 is not free from reasonable doubt. In other words, the prosecution has failed to prove offences alleged against accused Nos.1 to 4 beyond reasonable doubt. As already stated PW.1 had suffered decree in relation to the disputed land. There was animosity between parties. In other words, the prosecution has failed to prove offences alleged against accused Nos.1 to 4 beyond reasonable doubt. As already stated PW.1 had suffered decree in relation to the disputed land. There was animosity between parties. In this background, the prosecution was expected to adduce consistent and credible evidence to prove offences alleged against accused Nos.1 to 4. In the discussion made supra, we have referred to the discrepancies found in the evidence adduced by the prosecution. Therefore, we hold that prosecution has failed to prove the offences alleged against accused Nos.1 to 4 beyond reasonable doubt. 9. The learned Sessions Judge has not properly appreciated the evidence. The learned Sessions Judge has failed to notice the discrepancies found in the evidence adduced by the prosecution. The learned Sessions Judge has failed to notice the background of incident and also civil litigation which ended in favour of accused Nos.1 to 4. Therefore, the impugned judgment cannot be sustained. In view of this finding, the appeal filed by the State for conviction of the accused Nos.1 to4 for higher offence (for an offence punishable under Section 326 IPC) does not survive for consideration. 10. In the result, we pass the following ORDER Crl.A.No.695/2012 is accepted. Crl.A.No.698/2011 is dismissed. The impugned judgment of acquittal of accused Nos.1 to 4 of offences punishable under Sections 341, 326 r/w 114 IPC and also Section 3(1)(x) of Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act is confirmed. The impugned judgment of conviction of accused Nos.1 and 2 for an offence punishable under Section 324 IPC and conviction of accused Nos.3 and 4 for an offence punishable under Section 506 IPC is set aside. Accused No.1Shivappa, S/o late Gurumallappa and accused No.2Chikannappa, S/o late Gurumallappa are acquitted of an offence punishable under Section 324 IPC. Accused No.3Basavalingappa, S/o late Gurumallappa and accused No.4Subbappa, S/o late Gurumallappa are acquitted of an offence punishable under Section 506 IPC. Their bail bonds stand cancelled. If accused Nos.1 to 4 have deposited fine amount in terms of the impugned judgment, the same shall be refunded to them.