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Karnataka High Court · body

2020 DIGILAW 1397 (KAR)

Mahadevappa v. State Of Karnataka

2020-07-14

B.A.PATIL, M.G.UMA

body2020
JUDGMENT B.A.Patil, J. - Criminal Appeal No.100014/2016 has been preferred by accused Nos. 1, 3 and 5 challenging the judgment of conviction and order of sentence dated 14.10.2015 and 17.10.2015 passed by II Addl. District and Sessions and Special Judge, Dharwad in Special SC/ST.CC No.38/2012. Criminal Appeal No.100166/2016 has been preferred by the State challenging the order of acquittal of accused Nos. 2 and 4 for the offence punishable under Sections 342 and 302 R/w. Section 149 of the IPC and to convict the accused for the offences punishable under Sections 302, 307, 323, 498A and 511 R/w. Section 149 of the IPC and also under Sections 3(1)(x) and 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the SC/ST Act', for short). 2. We have heard the learned counsel Sri.K. M. Shiralli for the appellants/accused Nos. 1, 3 and 5 and the learned Addl. SPP Sri. V. M. Banakar, for the State. 3. The factual matrix of the case are that, on 05.08.2012 at about 5.30 pm, when the deceased Suresh Walikar was proceeding on road, accused No.1 Mahadevappa suspecting that he had illicit relationship with his wife, assaulted the said Suresh Walikar with stick on his head and when he fell down accused No.1 dragged him to his house and there accused Nos.1 to 5 by constituting an unlawful assembly inside the house, closed the front and back doors of the house and tied the hands, legs of Suresh and the wife of accused No.1 Saraswati with a plastic rope and accused No.5 caught hold of the legs of Suresh. It is alleged that accused No.1 assaulted them with sickle and accused No.4 assaulted Saraswati with knife and caused bodily grievous injuries. At that time, accused No.2 was watching near the back door and accused No.3 was watching near the front door by standing inside the house. It is further alleged that the people who were aware of the said fact pushed the door and they noticed the act of the accused and immediately they have shifted the said injured to the hospital, but the said Suresh died on the way to the hospital and the wife of accused No.1 Saraswati was got admitted in the hospital and she recovered from the injuries. It is further alleged that, accused Nos.1 to 5 have abused the deceased Suresh by referring to the name of his caste as "Walmiki Soolemagane" and intentionally insulted him. In that light, a complaint was registered. On the basis of the complaint, a case has been registered in Crime No.91/2012. Thereafter, after investigation charge sheet was filed as against accused Nos. 1 to 5. 4. The Special Court secured the presence of the accused and after hearing the learned Public Prosecutor and the learned counsel for the accused, charge was prepared, read over and explained to the accused. The accused pleaded not guilty. They claimed to be tried and as such, trial was fixed. 5. To prove the case of the prosecution, it examined 31 witnesses and got marked 37 documents and 13 material objects. Thereafter statement of the accused was recorded under Section 313 Cr.P.C. Accused denied all the incriminating material as against him. He has not chosen to lead any defence evidence on his behalf nor got marked any documents. After hearing the arguments, the trial Court came to the conclusion that there is material as against accused Nos. 1, 3 and 5 to convict them and acquitted accused Nos. 2 and 4. Aggrieved by the same, the appellants/accused Nos.1, 3 and 5 are before this Court seeking acquittal and State is before this Court seeking conviction of accused Nos.2 and 4. 6. The main grounds urged by the learned counsel for the appellants/accused is that, the impugned judgment of conviction and order of sentence passed by the trial Court is contrary to law, evidence, facts and probabilities of the case on hand. It is his further submission that there is delay in registering the complaint and the prosecution has not explained the delay. It is his further submission that, if there is delay in registering the complaint that itself creates a suspicion in the entire case of the prosecution. It also reveals that, only with an intention to falsely implicate the accused, the said case has been registered as against the accused after discussion and deliberation. It is his further submission that the prosecution has led two sets of evidence, one of the relatives and another one is of the interested witnesses. Only on the basis of such evidence the prosecution is trying establish the case against the accused. It is his further submission that the prosecution has led two sets of evidence, one of the relatives and another one is of the interested witnesses. Only on the basis of such evidence the prosecution is trying establish the case against the accused. No independent witnesses, who were available at the place of alleged incident, have been examined by the prosecution. It is his further submission that, even though there is no corroboration in the evidence of the prosecution, the trial Court erroneously convicted the accused. It is his further submission that, the Investigating Officer had not bothered to see the injured even after the receipt of first information and even Ex.P25 clearly goes to show that the injured was conscious and oriented and he could have recorded the statement of the injured witness. But for the reasons best known to the prosecution, the said statement had not been recorded and that itself shows that the material facts have been suppressed and thereby the truth has been kept in darkness. It is his further submission that, only by relying on the testimony of the prosecution witnesses, the trial Court has come to the conclusion that there is material as against the accused. It is his further submission that, though the evidence produced is not trustworthy and reliable and creates a strong suspicion about the genesis of the case, still the trial Court has come to a wrong conclusion and has wrongly convicted accused Nos.1, 3 and 5. It is his further submission that, on similar facts and circumstances, accused Nos. 2 and 4 have been acquitted. The parity should have also been shown to accused Nos. 1, 3 and 5. On these grounds he prayed to allow the appeal and to set aside the impugned judgment of conviction and order of sentence. 7. Per contra, it is the submission of the learned SPP that the trial Court after considering the evidence of the witnesses has come to a right conclusion and has rightly convicted accused Nos. 1, 3 and 5. It is his further submission that the acquittal of accused Nos. 2 and 4 only on the ground that the victim - PW3 has not supported the case of the prosecution is not correct. Though there is ample material as against accused Nos. 2 and 4, the trial Court has erroneously acquitted them. 1, 3 and 5. It is his further submission that the acquittal of accused Nos. 2 and 4 only on the ground that the victim - PW3 has not supported the case of the prosecution is not correct. Though there is ample material as against accused Nos. 2 and 4, the trial Court has erroneously acquitted them. It is his further submission that, when accused No.2 was waiting near the door and accused No.4 assaulted PW3 Saraswati with knife and caused grievous brutal injuries, all the accused persons are equally liable for the offence, since all the accused have been charge sheeted under Section 34 of the IPC. It is his further submission that there are eyewitnesses to the alleged incident and their evidence is corroborated with the evidence of the doctor - PW21 who has treated PW3 and has issued the wound certificate as per Ex.P24. The trial Court without properly appreciating the evidence produced has come to a wrong conclusion and has erred in acquitting accused Nos. 2 and 4. It is his further submission that, when on similar facts and circumstances, the Court has come to the conclusion that there is material as against accused Nos. 1, 3 and 5, then on similar facts accused Nos. 2 and 4 also ought to have been convicted for the alleged offences. On these grounds, he prayed to dismiss the appeal filed by the appellants/accused Nos. 1, 3 and 5 and he prayed to allow the appeal filed by the State and convict accused Nos. 2 and 4 for the alleged offences. 8. We have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the materials including the trial Court records. 9. The first and foremost contention taken up by the appellants/accused Nos.1, 3 and 5 is that, there is delay in registration of the case and that itself creates a suspicion in the case of the prosecution that a case has been cooked up for the purpose of fixing the accused persons. 10. As per the case of the prosecution, on 05.08.2012, when the deceased was proceeding on the road, accused No.1 by suspecting the illicit relationship of the deceased with his wife, assaulted him with stick on his head and thereafter dragged him to his house and there accused Nos. 10. As per the case of the prosecution, on 05.08.2012, when the deceased was proceeding on the road, accused No.1 by suspecting the illicit relationship of the deceased with his wife, assaulted him with stick on his head and thereafter dragged him to his house and there accused Nos. 1 to 5 by constituting an unlawful assembly closed the front and back doors and have assaulted the deceased and wife of accused No.1. Thereafter, the people gathered there and they have shifted the injured persons to the hospital. A complaint was registered as per Ex.P1 on 06.08.2012 at about 7.15 am and FIR and the complaint have been sent to the Court on 06.08.2012 at about at 1.10 pm through P.C.No.756. 11. On perusal of the evidence of PW3 - victim, she has deposed that she has suffered with injuries and she has recovered her consciousness only on 08.08.2012. PW1 is the complainant. He has also deposed that they went to the place of incident and there accused No.1 was assaulting the deceased with sickle, accused No.5 was holding the legs of the deceased to restrict his movement, accused No.4 was assaulting PW3 with knife and accused Nos.2 and 3 were standing near the back and front doors. He has also deposed with regard to he taking the injured PW3 - Saraswati and deceased Suresh Walikar to KIMS Hospital, Hubballi. He further deposed that the doctor at KIMS declared the said Suresh Walikar as dead after examining him and thereafter he filed the complaint as per Ex.P1. Though during the course of arguments learned counsel for the appellants contended that on the way to the hospital police station is situated, but when the injured have suffered with grievous injuries and needs to be treated immediately, then no person will go and wait in the police station to file the complaint and he will take the injured to the hospital. 12. Even as could be seen from the evidence of PW28 - PSI, at about 2.30 am on 06.08.2012, he received an anonymous phone call about the galata which has taken place in Kuknur village and they got information that the injured had been taken to KIMS Hospital, Hubballi. 12. Even as could be seen from the evidence of PW28 - PSI, at about 2.30 am on 06.08.2012, he received an anonymous phone call about the galata which has taken place in Kuknur village and they got information that the injured had been taken to KIMS Hospital, Hubballi. Immediately he made an enquiry and went to KIMS Hospital and there he received the information that Suresh Walikar was already dead and Saraswati was taking treatment and she was not in a position to give any statement. Thereafter he made an enquiry with PW1 Parameshwarappa Walikar and taken the complaint and brought the same to the police station and registered the case. During the course of cross-examination of this witness, nothing has been elicited so as to discard his evidence. When the injured was taking treatment and she was not in a position to give any statement, the Investigating Officer has taken the complaint from PW1 and in that light there is no delay as such as contended by the learned counsel for the appellants. There is no force in the contention taken up by the appellant's counsel. 13. Though it is contended by the learned counsel for the appellants that the delay caused in lodging the complaint creates a doubt in the case of the prosecution and there is concoction and creation of facts, but during the course of cross-examination nothing has been elicited so as to bring any fact that other persons committed the alleged offence and the same has been turned in favour of accused. Even nothing has been brought on record to show why they have been falsely implicated and a false case has been registered after deliberation by including many more persons. Under the said facts and circumstances, we are of the considered opinion that the contention taken up by the learned counsel for the appellants in this behalf is not having any force and the same is liable to be rejected. 14. Secondly, it is the contention of the learned counsel for the appellants that the evidence of eyewitnesses is not trustworthy and reliable. To prove the case of the prosecution, prosecution got examined PWs.1, 4, 9, 11 to 20, 31, 30 as eyewitnesses. Admittedly, PWs.11 to 20 have not supported the case of the prosecution and they have been treated as hostile. To prove the case of the prosecution, prosecution got examined PWs.1, 4, 9, 11 to 20, 31, 30 as eyewitnesses. Admittedly, PWs.11 to 20 have not supported the case of the prosecution and they have been treated as hostile. PW1 is the complainant and he is also the eyewitness to the alleged incident. In his evidence he has deposed that one Irappa Maruti Walikar came and informed him that in front of the house of one Basavaneppa Rotti, accused No.1 had taken the deceased Suresh to his house by dragging after assaulting him with stick. He deposed that, immediately himself, PW4, PW9 and PW10 went to the house of accused No.1 and saw that already people have gathered there and they heard the screaming voice saying not to beat them and save them. He deposed that, after making some efforts they broke open the main door of the house of accused No.1 and entered the house. During the course of crossexamination nothing has been elicited so as to discard the evidence of this witness. 15. Pw4 is also an eyewitness to the alleged incident. He has spoken with regard to the first incident as well as the subsequent incident which was taken place in the house of accused No.1. He has deposed that accused No.1 was assaulting the deceased with sickle, accused No.5 was holding his legs, accused No.3 was standing near the front door and accused No.2 was standing near the back door and accused No.4 was not present there when they have entered the house. He deposed that accused No.1 had also assaulted PW3 with stone and thereafter they have taken the injured to KIMS Hospital. This witness has been partly treated as hostile. During the course of cross-examination by the learned Public Prosecutor, he has admitted the fact that on 05.08.2012 at about 5.30 pm, he was there near the house of one Rotti and accused No.1 came there by holding the stick and assaulted the deceased Suresh by abusing with filthy language till he became unconscious and thereafter he dragged the deceased Suresh to his house and though he requested to leave him, accused No.1 did not leave him and took the deceased to his house. He has also further admitted that, by breaking open the door they went inside the house of accused No.1 and there they saw that the accused No.1 was holding the sickle and assaulting the deceased, accused No.4 was assaulting PW3 - Saraswati with knife and they rescued the injured and shifted them to hospital. He further admitted that the complainant is doing politics as his mother is the Gram Panchayat member. He has deposed that he has signed Ex.P9 after one day of the death of Suresh at about 4.30 pm. He has further admitted that, when he had been to the house of accused No.1 it was about 7.30 pm and there was no electricity as it was raining. He has further admitted that accused No.1 assaulted PW3 Saraswati with stone near the eyebrow and when they entered he saw accused No.1 assaulting PW3 with stone and immediately after that accused No.1 and other accused ran away from that place by throwing the knife and other articles there itself. Except that nothing has been brought on record so as to discard the evidence of this witness. PW9 is also another eyewitness. He has also reiterated the evidence of PWs.1 and 4. 16. Pw30 mother of the deceased Suresh has spoken with regard to the motive behind the alleged incident. In her evidence, she has deposed that accused No.1 was suspecting that the deceased was having illicit relationship with his wife and in that light he was grinding an axe against her son. During the course of cross-examination nothing has been elicited from her. 17. Pw31 is another eyewitness with regard to the first incident. It is he who saw the alleged incident of accused No.1 assaulting the deceased with a stick in front of the house of Basavaneppa Rotti and he went and informed the same to PW1 and thereafter they have gone to the house of accused No.1. He has also spoken with regard to the second incident which has taken place at the house of accused No.1. During the course of cross-examination nothing has been elicited so as to discard the evidence of this witness. 18. By going through the evidence produced before the Court with reference to these eyewitnesses, there is material to show that accused No.1 has assaulted the deceased with sickle and because of the assault the deceased succumbed to the injuries. During the course of cross-examination nothing has been elicited so as to discard the evidence of this witness. 18. By going through the evidence produced before the Court with reference to these eyewitnesses, there is material to show that accused No.1 has assaulted the deceased with sickle and because of the assault the deceased succumbed to the injuries. As could be seen from the evidence of PW-4, it shows the alleged incident of assaulting deceased by accused No.1 at 5.30 p.m. in front of the house of one Rotti. It is a public place where there was day broad light. Immediately thereafter, accused No.1 dragged deceased upto his house. In the meanwhile, he went and brought PW-1. The evidence of all these witnesses show that the accused assaulted the deceased. In that light, the admission of this witness that there was no light will not take away the case of the prosecution. 19. On perusal of the evidence of PW27 - the doctor, who has conducted the autopsy over the body of the deceased, in his evidence he has deposed that he has conducted the autopsy over the body of the deceased Suresh and has found as many as nine injuries. He has opined that all the injuries mentioned in the post-mortem report may be possible by the weapon like sickle and death is due to shock and hemorrhage as a result of the injuries sustained and he has given the post-mortem report as per Ex.P30 and opinion as per Ex.P31. In that light, there is sufficient evidence as against accused No.1 to bring home the guilt of the accused beyond all reasonable doubt. 20. All these witnesses have consistently and categorically deposed before the Court with reference to the earlier incident that, when the deceased was proceeding in front of the house of one Basavanneppa Rotti, accused No.1 came there by holding stick and started assaulting the deceased and thereafter he was taking the deceased to his house by dragging him and there by closing the door he assaulting the deceased with sickle. Their evidence corroborates with the evidence of doctor PW-27. Under these circumstances, there is nothing to discard the evidence of these eyewitnesses. 21. Their evidence corroborates with the evidence of doctor PW-27. Under these circumstances, there is nothing to discard the evidence of these eyewitnesses. 21. During the course of arguments learned counsel for the appellants has brought to the notice of this Court that, when the alleged incident has taken place on 05.08.2012, the evidence of the material eyewitnesses has been recorded by the Court after one year and hence there may be some minor discrepancies in the evidence of these witnesses. It is well settled proposition of law that, while appreciating the evidence some minor discrepancies of trivial matters which do not affect the core of the case of the prosecution must not prompt the Court to reject the evidence of the eyewitnesses in its entirety. 22. Taking into consideration the said aspect, on perusal of the deposition of the eyewitnesses, there is consistency in their evidence to show that accused Nos. 1 and 5 with an intention to commit the murder of the deceased Suresh have wrongfully confined him inside the house and it is accused No.5 who was holding the legs by tying him and by that time accused No.1 was assaulting the deceased with sickle and the deceased succumbed to the injuries which have been caused by accused No.1. Insofar as the common intention of accused No.3 is concerned, the prosecution has not produced any material to show that there was a prior meeting of the minds of accused Nos.1, 3 and 5. It is the case of the prosecution that it is accused No.3 who was watching near the front door and it is accused No.2 who was watching near the back door. Even on perusal of the evidence of all the witnesses they have not deposed any overt acts as against the appellant/accused No.3. Under same facts and circumstances of the case accused No.2 has been acquitted for the offence punishable under Sections 342, 302 read with Section 149 of the IPC and on similar facts and circumstances, accused Nos. 1, 3 and 5 have been convicted for the offence punishable under Sections 342, 302 read with Section 34 of the IPC. 23. Under the said facts and circumstances, we are of the considered opinion that though there is no ample material to show that accused No.3 with a common intention along with accused Nos. 1, 3 and 5 have been convicted for the offence punishable under Sections 342, 302 read with Section 34 of the IPC. 23. Under the said facts and circumstances, we are of the considered opinion that though there is no ample material to show that accused No.3 with a common intention along with accused Nos. 1 and 5 has assaulted the deceased, the presence of the said witnesses has been stated by some of the witnesses. In that light, commission of offence insofar as appellant/accused No.3 is concerned, it is not based upon the concrete material, but insofar as accused Nos. 1 and 5 is concerned, the serious overt acts have been alleged against them and the trial Court after considering all the material has come to a right conclusion and has convicted them. There are no good grounds to interfere with the judgment of the trial Court. 24. Though the State has preferred the appeal against the order of acquittal of accused Nos. 2 and 4, but on perusal of the order of the trial Court as well as the materials on record, there is no cogent and acceptable material as against accused Nos. 2 and 4. It is alleged that accused No.4 assaulted PW-3 with stone and caused injuries but she has not supported the case of the prosecution and she has been treated as hostile. PW-4 in his evidence has admitted accused No.4 was not present there when they entered the house. The trial Court after taking into consideration the said facts and circumstances has rightly acquitted accused No.2 and 4 for the alleged offences. The State has not made out any good grounds so as to interfere with the judgment of the trial Court on this finding. It is well settled proposition of law that, when the trial Court after considering the materials placed on record has exercised its jurisdiction and has acquitted the accused, then the Appellate Court must be very slow in interfering with the said judgment. It can only interfere with such orders only if there is any glaring illegality or perversity in the order passed by the trial Court. No such perversity or illegality has been pointed out by the learned Addl. SPP during the course of arguments. In that light, the judgment of the trial Court with regard to acquittal of accused Nos. 2 and 4 deserves to be confirmed. 25. No such perversity or illegality has been pointed out by the learned Addl. SPP during the course of arguments. In that light, the judgment of the trial Court with regard to acquittal of accused Nos. 2 and 4 deserves to be confirmed. 25. Taking into consideration the above said facts and circumstances, we pass the following order: ORDER Criminal Appeal No.100014/2016 is allowed in part. The judgment of conviction and order of sentence dated 14.10.2015 and 17.10.2015 passed by the II Addl. District, Sessions and Special Judge, Dharwad in Special SC/ST CC No.38/2012 is set aside insofar as conviction of appellant/accused No.3 is concerned. Accused No.3 is acquitted of all the charges leveled against him. His bail bond and surety bond stands cancelled. Insofar as appellant/accused Nos. 1 and 5 is concerned, the judgment of the trial Court is confirmed. Criminal Appeal No.100166/2016 is dismissed as devoid of merits.