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2020 DIGILAW 2208 (KAR)

Bochegowda v. State Of Karnataka

2020-11-06

B.VEERAPPA, K.NATARAJAN

body2020
JUDGMENT K Natarajan, J. - This appeal is filed by the complainant/appellant against the judgment and order of acquittal dated 03.06.2015 passed in Sessions Case No.59/2012 by the III Additional District and Sessions Judge, Mandya Sitting at Srirangapatna (for short Trial Court ), for having acquitted the accused for the offences punishable under Sections 341, 504 and 324 read with Section 34 of IPC. 2. The ranks of the parties before the Trial Court are retained for the sake of convenience. 3. The case of the prosecution is that the Arakere Police, Mandya District, filed the charge sheet against accused Nos.1 to 4 and accused No.1 died in the same incident and a counter case was registered against the complainant and others in Crime No.179/2010. As per the complainant, that on 16.08.2010, at 10.00 a.m. when the complainant went to his land for cultivating, the neighbouring land owners i.e. deceased accused No.1- Madegowda and accused Nos.2 to 4 suddenly started abusing the complainant in filthy language and with a common intention to commit the murder of the complainant, picked-up a quarrel and assaulted the complainant and his son Pradeep with chopper and his son Pradeep fell down to the ground. At that time, the deceased Madegowda asked accused Nos.2 and 3 to flee away from the scene as if Pradeep died and some passerby pacified the quarrel and with the assistance of one Jitendra went to the Hospital at Mandya and took treatment. After obtaining the complaint from the complainant, the Police registered the case in Crime No.180/2010. The jurisdictional Police, after the investigation, filed the charge sheet. A counter-case was also registered against the complainant his son Pradeep in Crime No.179/2010. Both the cases were committed to the Court of Sessions and the Trial Court secured the presence of the accused and framed the charges. The accused pleaded not guilty and claimed to be tried. 4. In order to prove the case, the prosecution, in all examined 9 witnesses as PWs.1 to 9 and got marked 8 documents as per Exs.P.1 to P.8 apart from the material objects MOs.1 to 8. In the cross-examination, the accused got marked 11 documents as per Exs.D.1 to D.11. 5. After closing of the evidence of the prosecution, the statement of the accused under Section 313 of Cr.P.C. has been recorded. The case of the accused was one of total denial. In the cross-examination, the accused got marked 11 documents as per Exs.D.1 to D.11. 5. After closing of the evidence of the prosecution, the statement of the accused under Section 313 of Cr.P.C. has been recorded. The case of the accused was one of total denial. He filed written submission under Section 313(5) of Cr.P.C. but not adduced any oral evidence. 6. After considering the evidence on record and after hearing the arguments, the Trial Court found the accused not guilty and acquitted them for the aforesaid offences mainly on the ground that the complainant and his son are the aggressors to the incident and caused the murder of accused No.1-Madegowda in SC No.71/2011 and finally acquitted the accused. Being aggrieved by the same, the complainant filed this appeal challenging the judgment and order of acquittal. The State has not preferred any appeal against the said judgment and order of acquittal. 7. We have heard Sri T.Prakash, learned counsel for the appellant, Sri Vijaykumar Majage, learned Additional State Public Prosecutor for respondent No.1-State and Sri Sudeep Bangera, learned counsel for the accusedrespondent Nos.2 to 4. 8. Learned counsel appearing for the appellant/complainant contended that the impugned judgment and order of acquittal passed by the Trial Court is not sustainable under law since a case and a countercase has been registered in the same Police Station. The incident was admitted. During the quarrel between the parties, the complainant also sustained injuries and one of the accused died in the hospital. The Police have conducted the investigation on one side, totally ignoring the injuries found on the complainant and his son. Even though the accused as well as the complainant took treatment in the same hospital, the Police have chosen to record the statement of accused No.2, but ignored the complainant and his son who were also in the same hospital and not recorded their statement deliberately and caused delay in registering the case against them. 9. The learned counsel for the complainant further contended that the evidence of PW.1 clearly goes to show that the complainant and his son has sustained injuries and taken treatment. The Trial Court also not considered the evidence on record in a proper perspective and not properly appreciated the evidence while recording the finding on acquittal. 9. The learned counsel for the complainant further contended that the evidence of PW.1 clearly goes to show that the complainant and his son has sustained injuries and taken treatment. The Trial Court also not considered the evidence on record in a proper perspective and not properly appreciated the evidence while recording the finding on acquittal. The complainant and his son sustained injuries on their head and the weapon used by the accused were chopper and clubs, whereas in the counter-case filed against the complainant, the weapons used for assaulting were clubs. In spite of the same, the Trial Court proceeded to acquit the accused persons, which cannot be sustained. The evidence on record clearly depicts the offence committed by the accused persons. 10. Learned Additional State Public Prosecutor appearing for respondent No.1-State has fairly admitted that the State has not preferred any appeal against the judgment of acquittal. 11. Learned counsel appearing for the respondentsaccused has supported the judgment and order of acquittal passed by the Trial Court and contended that the Trial Court after considering the case and the counter-case rightly acquitted the accused persons and convicted the complainant and another for the offence for causing homicidal death of accused No.1-Madegowda. There is a delay of 12 hours in lodging the complaint. The incident took place at 10.00 a.m. and the case was registered at 8.00 p.m. The nature of injuries sustained by the complainant and his son are simple in nature. There were lot of contradictions in the evidence of the prosecution witnesses, because the complainant and his son committed the murder of Madegowda-accused No.1 and assaulted accused Nos.2 and 4 and as counterblast the complainant filed a case against accused. The Trial Court after considering the complaint of the accused held that the complainant and his son are the aggressors and rightly acquitted the accused persons. Therefore, there is no ground made out by the complainant to interfere with the impugned judgment and order of acquittal passed by the Trial Court. Hence, prayed for dismissal of the appeal. 12. The Trial Court after considering the complaint of the accused held that the complainant and his son are the aggressors and rightly acquitted the accused persons. Therefore, there is no ground made out by the complainant to interfere with the impugned judgment and order of acquittal passed by the Trial Court. Hence, prayed for dismissal of the appeal. 12. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for our consideration is: Whether the appellant has made out a case to interfere with the impugned judgment and order of acquittal passed by the Trial Court, acquitting accused Nos.2 to 4 for the offences punishable under Sections 341, 504 and 324 read with Section 34 of IPC, in the facts and circumstances of the present case? 13. Upon hearing the arguments and on perusal of the records including the original records, it is necessary to have a cursory look at the evidence led by the prosecution before the Trial Court, which reads as under: i) PW.1-Bochhegowda is the complainant and injured. He has deposed against the accused as shown by him in his complaint Ex.P.1. ii) PW.2-Pradeep is another injured witness and son of PW.1. He has also deposed in the same line like his father PW.1. Both of them have stated that the accused persons including the deceased accused came to the land with a common intention to assault them, picked up a quarrel and then assaulted them with chopper and clubs. The same was disputed by the learned counsel for the accused in the cross-examination and the defence has been set up by the accused stating that the deceased has purchased the land adjacent to the land of PW.1 and after the survey, he was cultivating the land by planting Tomato saplings and the accused spoiled the plants. When the same was questioned by the accused, both PWs.1 and 2 assaulted the deceased accused No.1-Madegowda and caused his death. But these two witnesses denied the same, but the fact remains that a case and counter-case has been registered by the same police against PWs.1 and 2 in Crime No.179/2010 and due to the assault by the PW.2-Pradeep, the accused No.1-Madegowda, who sustained grievous injuries died in the hospital. But these two witnesses denied the same, but the fact remains that a case and counter-case has been registered by the same police against PWs.1 and 2 in Crime No.179/2010 and due to the assault by the PW.2-Pradeep, the accused No.1-Madegowda, who sustained grievous injuries died in the hospital. The Trial Court also found the PWs.1 and 2 as guilty for the offence made out in the charge and convicted and sentenced them to life imprisonment. iii) PW.3-Dr.Habib Jhan, the doctor who examined PWs.1 and 2, found one injury each on PWs.1 and 2 measuring 1x3 cms. and issued wound certificate as per Exs.P.3 and P.4. In the cross-examination, this witness has admitted that the deceased Madegowda, accused Nos.1 and 3 sustained injuries and taken treatment in the hospital and MLC Report has been sent to the Police in respect of admission of accused Nos.1 and 2. iv) PW.4-N.Madegowda is said to be the eyewitness. He has reiterated what is stated by PW.1. He prepared the complaint as per Ex.P.1 and gave to the Police. However, this witness has stated that accused No.1 died due to the assault by PWs.1 and 2. v) PW.5-Jitendrakumar who is stated to be the eyewitness has stated that the accused assaulted PWs.1 and 2. He has stated that accused Nos.2 and 4 tried to assault PW.1 with chopper but PW.1 escaped from the hit and the same fell on the deceased Madegowda and also on PW.2. The same was denied by learned counsel for the accused in the cross-examination and there are lot of contradictions in his evidence and improvements. This witness has stated on par with evidence of PWs.1 and 2. But, the suggestion is made by the counsel in the countercase that PW.1 himself (i.e. accused No.1) caused injuries to his father accused No.1-Madegowda. The same is denied by the witnesses and the trial Court disbelieved the evidence. vi) PW.6-Chikkaraju is the Assistant Sub-Inspector of Police who received the complaint from PW.1 and also recorded the statement of PW.2. He has handed over the same to the Police Sub-Inspector, for registering the case. He has also identified the clothes of PWs.1 and 2 and the material objects seized under the panchanama-Ex.P.2. vi) PW.6-Chikkaraju is the Assistant Sub-Inspector of Police who received the complaint from PW.1 and also recorded the statement of PW.2. He has handed over the same to the Police Sub-Inspector, for registering the case. He has also identified the clothes of PWs.1 and 2 and the material objects seized under the panchanama-Ex.P.2. vii) PW.7-Nagaraju is the Police Sub-Inspector who registered the case on the complaint of PW.1 in Crime No.180/2010 and visited the spot, prepared the spot panchanama and seized the chopper and club under the panchanama and identified the same as per MOs.3 to 5. He has admitted about the counter-case being registered against PWs.1 and 2 and seizure of the articles on the pot. viii) PW.8-N.L.Nanjundegowda is the witness to the seizure panchanama for seizure of material objects by the Investigating Officer. ix) PW.9-Prabhakar Rao Sindhe is the Sub- Inspector who filed the charge sheet. 14. Upon considering the evidence of the prosecution witnesses, it is seen that PWs.1 and 2 have stated that the deceased Madegowda came to the land with a common intention to assault them by picking-up a quarrel. But both of them denied the injuries sustained by accused Nos.2 and 4 and also the deceased accused No.1- Madegowda. PW.4though tried to state that accused No.2 tried to assault PWs.1 and 2 and the hit fell on the deceased Madegowda who sustained injuries and stated in the same line in the cross-examination made by them in the counter-complaint filed by accused No.2. But in the cross-examination, both PWs.1 and 2 denied the injuries sustained by accused Nos.2 and 4 due to assault made by them. 15. On careful perusal of the entire evidence on record, it is admitted fact that there was quarrel between PWs. 1 and 2 and accused Nos.1, 2 and 4 and on comparing the evidence on record, most of the evidence of PWs.1 and 2 is improvement. Though the Police registered the case for the offence under Section 307 of IPC, but they filed the charge sheet only for the offence punishable under Section 324 of IPC. However, the Investigating Officer though filed the charge sheet in both the cases, but he has not tried to verify or find out as to who is the aggressor and which is the real complaint. However, the Investigating Officer though filed the charge sheet in both the cases, but he has not tried to verify or find out as to who is the aggressor and which is the real complaint. On considering the evidence on record, the Trial Court has recorded the findings based upon the evidence of PW.3, the doctor and the same doctor has given evidence in the counter case. The evidence of PWs.1, 2 and 5 are not sufficient to prove the guilt of the accused and the accused persons are not the aggressors in the crime. There is lot of contradictions in their evidence which were marked as Exs.D.1 to D.8. Based upon the findings, the Trial Court acquitted the accused persons. Even otherwise, on perusal of the entire evidence on record, PWs.1, 2 and 5 suppressed the material facts that they themselves picked-up quarrel with the accused and assaulted them on the ground that they cultivated the land belonging to the accused. When the deceased Madegowda questioned PW.1 that he has purchased the land and after the survey he cultivated the land by planting Tomato saplings, PWs.1 and 2 picked up quarrel and assaulted accused No.1-Madegowda and caused serious injuries who died in the hospital. On independently considering the evidence on record, the evidence of these witnesses are insufficient to prove the guilt of the accused and as a counterblast, PW.1 has filed the complaint against the accused persons in order to overcome the assault made by them on the deceased. There is an inordinate delay in registering the case by the Investigating Officer. Though the incident took place at 10.00 a.m. PWs.1 and 2 were admitted in the hospital, the case was registered at 8.00 p.m. after registering the case in Crime No.179/2010 against the PWs.1 and 2. 16. Though learned counsel for the appellant has contended that there is a case and counter-case and the incident was admitted and there is no aggressor to the incident, both the group should be acquitted or convicted. 16. Though learned counsel for the appellant has contended that there is a case and counter-case and the incident was admitted and there is no aggressor to the incident, both the group should be acquitted or convicted. But on perusal of the records, we do not find any error committed by the Trial Court in acquitting the accused persons and the evidence of PWs.1 and 2 do not inspire confidence of this Court that they have revealed the truth before the Court and also in the complaint and in order to overcome the crime of causing death of Madegowda, they filed the complaint and nowhere PWs.1 and 2 set up self defence and stated that they assaulted the deceased, accused Nos.1, 2 and 4 as a self-defence. But on the other hand, they deliberately stated that the accused came and voluntarily picked-up quarrel and assaulted them, PWs.1 and 2 have also not stated as to what are the vulgar words used by the accused while quarrelling with them and restrained them from moving. As the accused persons themselves were cultivating their land, the question of restraining PWs.1 and 2 does not arise. Therefore, the evidence of PWs.1, 2 and 5 cannot be acceptable for proving the guilt of the accused persons. 17. On considering the entire material on record, we do not find any error committed by the Trial Court in acquitting the accused persons which calls for interference by this Court. Hence, we answer the point raised in the appeal in the negative holding that the appellant has not made out any case to interfere with the impugned judgment and order of acquittal passed by the Trial Court. Therefore, the appeal filed by the complainant deserves to be dismissed. 18. Accordingly, the appeal filed by the complainant under Section 372 read with Section 378 of Cr.P.C. is hereby dismissed as devoid of any merit.