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Karnataka High Court · body

2020 DIGILAW 945 (KAR)

Shankarappa v. State Of Karnataka

2020-06-02

B.A.PATIL, M.G.UMA

body2020
JUDGMENT M.G.Uma, J. - This appeal has been preferred by the appel lant chal lenging the impugned judgment of conviction and order of sentence dated 31/3/2016 passed in SC No.24/2014 on the file of the learned Additional District & Sessions Judge, Gadag, (hereinafter referred to as "the trial Court"), whereunder the present appellant was arrayed as accused No.2 and was convicted for the offence punishable under Sections 302 of IPC, whi le acquitting him for the offences punishable under Sections 143, 147, 148, 323, 324, 354, 504, 307 of IPC and also acquitting accused No.1, 3 to 10 for the offences punishable under Sections 143, 147, 148, 323, 324, 354, 504, 307 and 302 read with Section 149 of IPC. 2. The respondent State is notif ied. Heard the learned advocate for the appel lant Sri. B.S.Kukanagoudar and learned Additional SPP Sri. V.M.Banakar for the State. Perused the materials on record including the LCR. 3. It is the contention of the prosecution before the trial Court that on 15/1/2014 at 8:00 a.m. accused Nos.1 to 10 with a common object formed unlawful assembly in front of the house of CW1 and picked up quarrel with the informant in the matter of property dispute, committed rioting with deadly weapon and assaulted CWs.8 to 13 with hands and caused hurt to CWs.1, 8, 4 and 6 with the handle of axe, dragged CWs.9 and 10 and fisted on their chest and outraged their modesty and abused them in fi lthy language and gave life threat to CWs.1, 8 to 13. Further, accused Nos.1, 2, 9 and 10 assaulted CWs.1, 8 to 13 with sticks, handle of the axe and wooden plank and caused grievous hurt and attempted to cause their death, and accused No.2 assaulted Basavanneppa Hadapad and caused fatal injuries, as a result of which, he succumbed to the injuries and thereby al l the accused have committed the offences punishable under Sections 143, 147, 148, 323, 324, 354, 504, 307 and 302 read with Section 149 of IPC 4. The Investigating Off icer investigated into the mater and fi led charge sheet against accused Nos.1 to 10 for the above said offences and the learned Magistrate committed the matter to the learned Principal Sessions Judge after securing the presence of the accused and fol lowing procedure under Section 207 of Cr.P.C. The matter was made over to the trial Court and it had secured the presence of the accused and framed the charges against al l the accused including the present appellant who is arrayed as accused No.2 and the accused have pleaded not gui lty and claimed to be tried. 5. To prove this contention, the prosecution has examined PWs.1 to 29, got marked Exs.P1 to 34 and identif ied MOs.1 to 8 in support of its contention. The statement of the accused under Section 313 of Cr.P.C. was recorded and the accused denied al l the incriminating materials avai lable on record but have not chosen to lead any evidence in support of their defence. They got marked Exs.D1 and D2 during cross-examination of the prosecution witnesses. 6. The trial Court after taking into consideration al l these materials on record came to the conclusion that the prosecution is successful in proving the gui lt of accused No.2 and convicted him for the said offence. However, the trial Court acquitted accused No.2 for the offences punishable under Sections 143, 147, 148, 323, 324, 354, 504, 307 of IPC and also acquitted accused Nos.1, 3 to 10 for all the offences alleged. 7. Accused No.2 who was convicted by the trial Court for the offence punishable under Section 302 of IPC preferred this appeal on the fol lowing grounds:- The impugned judgment of convection and order of sentence passed by the trial Court is i llegal, perverse and the same is l iable to be set aside. The trial Court has not appreciated the oral and documentary evidence placed before it in proper perspective. The trial Court has not taken into consideration the fact that the so called injured witnesses and the deceased in the present case were accused in the counter case, i.e S.C.No.8/2015 which was also pending before the trial Court and al l of them were acquitted. The trial Court has not taken into consideration the fact that the so called injured witnesses and the deceased in the present case were accused in the counter case, i.e S.C.No.8/2015 which was also pending before the trial Court and al l of them were acquitted. The trial Court has fai led to appreciate the fact that the case and counter case between the parties were registered out of the same incident, but, proceeded to convict the present appel lant on the basis of the version of the interested testimony. The trial Court has ignored the material contradiction and omissions in the evidence led by the prosecution. The trial Court committed serious error in convicting the appellant for the offence punishable under Section 302 of IPC, wherein it is found that simi lar offence alleged against accused No.1, 3 to 10 is not proved by the prosecution. The evidence led by the prosecution against accused Nos.1 to 10 was in common and it is not separable against the present appellant. Under such circumstances, the trial Court could not have convicted the present appel lant alone and there is no reason assigned in the impugned judgment of conviction for the same. The trial Court has erred in ignoring the fact that there is inordinate delay in registering the FIR. Therefore, the impugned judgment of conviction and order of sentence passed against the appel lant is l iable to be set aside in the interest of justice. On these grounds he prays to al low the appeal. 8. The points that would arise for our consideration are as under:- i ) Whether the prosecution is successful in proving the gui lt of accused No.2 for the offence punishable under Section 302 of IPC beyond reasonable doubt? i i) Whether the impugned judgement of conviction and order of sentence is l iable to be interfered with? i ii ) What order? 9. As per the case made out by the prosecution, PW2 is the first informant and he is the injured eye witness. As per the first information Ex.P3, the incident had taken place at 15/1/2014 at 8:00 a.m. infront of his house and since he was injured, he was shifted to the district hospital at Gadag and while he was being treated, his statement was recorded by the pol ice at 11:30 a.m. Immediately, FIR was registered as per Ex.P32. 10. As per the first information Ex.P3, the incident had taken place at 15/1/2014 at 8:00 a.m. infront of his house and since he was injured, he was shifted to the district hospital at Gadag and while he was being treated, his statement was recorded by the pol ice at 11:30 a.m. Immediately, FIR was registered as per Ex.P32. 10. The carrier of the FIR to the jurisdictional Magistrate and the investigating off icer who registered the FIR are examined as PWs.27 and 28 respectively. Even though it is contended by the learned advocate for the appel lant that there is inordinate delay in registering the FIR, there is no such cross examination to any of these witnesses and nothing has been elicited from them and also from the informant PW1, to form an opinion that there is inordinate delay caused in registering the FIR or that the informant had gained time deliberately or that there is embezzlement of facts. 11. If the facts and circumstances of the case is also to be taken into consideration, admittedly, the informant PW2 was an injured eye witness and he was admitted to the hospital for treatment. Under such circumstances, it cannot be said that there is inordinate delay in fi ling the first information or registering the FIR. 12. As per the case made out by the prosecution PWs.2, 7 to 12 are the injured eyewitnesses. The deceased Basavanneppa Hadapad who sustained fatal injuries had succumbed to the same on 17/1/2014 whi le he was being treated in the hospital. Admittedly, the statement of the injured Basavanneppa was not recorded while he was taking treatment, even though it is said that he was fit to give statement. 13. The informant who is examined as PW2 specif ical ly stated in his chief examination that accused No.2 had assaulted his father with handle of the axe and accused No.1 with a wooden plank, as a result of which his father sustained bleeding injuries. Again in the chief examination, this witness states that in the first information Ex.P3, he had stated that accused No.2 had assaulted his father with a club. But, in fact he had assaulted with the handle of axe and further he had mentioned in the first information that accused No.1 had assaulted CW8 with an axe. Again in the chief examination, this witness states that in the first information Ex.P3, he had stated that accused No.2 had assaulted his father with a club. But, in fact he had assaulted with the handle of axe and further he had mentioned in the first information that accused No.1 had assaulted CW8 with an axe. He further stated that but in fact accused No.1 had assaulted the deceased and CW8 with a wooden plank. 14. Ex.P29 is the postmortem report of deceased Basavanneppa Hadapad which refers to the fol lowing external injuries:- i) 'C' shaped surgically sutured wound measuring 30cm present over right tempero parieto occipital region. ii) Two abrasions of size 1x1cm, 0.5x1cm present over right occipital region. 15. As per the opinion mentioned in the postmortem report, the death was due to coma as a result of the head injury sustained. The doctor who conducted postmortem examination had deposed before the Court as PW23 and specifically stated in the chief examination itself that since injuries were altered by surgery, he suggested the investigating officer to take opinion regarding the original nature, type and extent of injury and possible causative weapon, from the doctor who had seen and treated the injured at the first instance. 16. The learned advocate for the appellant has drawn our attention to the opinion given by the doctor who had treated the deceased at the first instance, which is as per Ex. P28. As per this document, the weapon-wooden plank seized by the police could cause the head injury as sustained by Basavanneppa Hadapad and that could cause his death. Conspicuously, there is no reference to any injury caused due to the assault by using the handle of an axe as cause of death. Further, the doctor who treated the deceased at the first instance and issued Ex.P28 is examined as PW22 wherein the witness reiterates his opinion as mentioned in Ex.P28 and states that the injuries sustained by the deceased on his head could have caused if he was hit with the wooden plank i.e. MO.1. 17. Our attention was also drawn to the spot panchnama Ex.P1 wherein both MOs.1 and 2 i.e. wooden plank said to have been used by accused No.l and handle of axe said to have been used by accused No.2 to assault the deceased and other injured, were seized from the scene of offence. 17. Our attention was also drawn to the spot panchnama Ex.P1 wherein both MOs.1 and 2 i.e. wooden plank said to have been used by accused No.l and handle of axe said to have been used by accused No.2 to assault the deceased and other injured, were seized from the scene of offence. As per the description of these weapons in the Punchnama, the wooden plank was measuring 6 inches in width and 21 inches in length. The wooden handle of the axe was measuring 2 inches in circumference and 30 inches in the length. Admittedly, the wooden plank identified as MO.1 is a heavy weapon with an edge, which could cause the fatal injuries found on the head of the deceased as per the medical evidence. It is not the case of the prosecution that MO.2 the handle of axe was having any edges or the said weapon could cause the fatal injury noted in the postmortem report. As we have already noted Ex.P28 is silent about the handle of the axe causing any fatal injury to the deceased. 18. A glaring inconsistency to be noted here is recovery of the weapon MO.2 under recovery panchanama Ex.P4 at the instance of accused No.2. The description of the weapon recovered at the instance of accused No.2 as found in Ex.P4 is an axe which is having the length of 6.5 inches with handle measuring 32 inches in length. But, none of the witnesses have referred to the axe with the handle. But, on the other hand, the reference is to the handle of the axe only. At the same time, the prosecution relies on the spot punchnama Ex.P1, whereunder the wooden handle measuring 2 inches in circumference and 30 inches in length was seized from the scene of offence along with the wooden plank. The prosecution has not made it clear as to whether the injuries caused to the deceased was inflicted by the handle of the axe seized under Ex.P4 or similar handle which was seized under Ex.P1. But, none the less, Ex.P28, the opinion given by the doctor who treated the deceased initially, do not refer to any of these two weapons as responsible for causing the injuries sustained by the deceased. 19. But, none the less, Ex.P28, the opinion given by the doctor who treated the deceased initially, do not refer to any of these two weapons as responsible for causing the injuries sustained by the deceased. 19. It is pertinent to note that PWs.1, 3 to 12 examined by the prosecution have either completely or partially turned hostile to the case of the prosecution. It is pertinent to note that PWs.7 to 12 are said to be the relatives of the deceased and they are the injured eyewitnesses, but, still they have not chosen to support the case of the prosecution. PW7 who is one of the injured eyewitnesses and specifically states that accused No.2 had never assaulted him or the deceased. 20. One more circumstance to be noted at this juncture is that PWs.14 to 19 are examined as independent witnesses to speak about the incident. But all these witnesses have turned hostile and their evidence is not helpful to the case of the prosecution. Therefore, we have the evidence of PW2 alone, who is one of the injured eyewitnesses, who filed the first information and who is the son of the deceased. But, as already noted, there is glaring inconsistency in his evidence as regards the weapons used by accused Nos.1 and 2 to inflict the injuries on the deceased. 21. The trial Court in its judgment at paragraph 48 observed that accused No.2 had assaulted the deceased with Halage (wooden plank) and as a result of which, the deceased died. This observation of the trial Court is entirely contradicts the case made out by the prosecution that it was accused No.1 who assaulted the deceased with the wooden plank and accused No.2 with handle of an axe. The trial Court also noted the opinion given by Dr.Sridhar Kuradagi-PW 22 as per Ex.P28 and attributed the said injury as caused by accused No.2 which is quite contrary to the materials placed before the Court. 22. Further, the trial Court formed an opinion that the evidence of the witnesses against accused No.1 is not helpful to prove the offence punishable under Section 302 of IPC. But, at the same time, it is observed that such evidence is sufficient to show that accused No.2 assaulted the deceased. 23. 22. Further, the trial Court formed an opinion that the evidence of the witnesses against accused No.1 is not helpful to prove the offence punishable under Section 302 of IPC. But, at the same time, it is observed that such evidence is sufficient to show that accused No.2 assaulted the deceased. 23. The learned advocate for the appellant placed his reliance on the decision in the case of RAM LAXMAN VS.STATE OF RAJASTHAN connected with SANJAY @ SANJU Vs. STATE OF RAJASTHAN,2016 AIAR(Criminal) 312 wherein the Hon'ble Supreme Court held that if a witness is found undependable and un-reliable, his evidence cannot be spl it up to grant benefit to some co-accused, by acquitting him whi le maintaining conviction of another, when in al l respects he stands on same footing and deserves parity. It also held that the acquittal of some of the accused persons on the same evidence whi le conviction of other co-accused on the very same evidence is not justif ied and that the convicted persons can justif iably claim parity with the co-accused who have been acquitted. 24. He also rel ied on the recent decision of the Hon'ble Apex Court in JODHRAJ & ANR. Vs. STATE OF RAJASTHAN,2020 AIAR(Criminal) 184 wherein the Honb' le Supreme Court held that if the deposition of eye witnesses are not rel iable qua one of the accused and one of the accused came to be acquitted by giving benefit of doubt, the same benefit ought to have been given to the other accused also, unless there is some further material/evidence against the other accused. 25. From the materials on record, in the present case, it is clear that the witnesses have spoken in general against the accused to some extent, but to a great extent they have turned hosti le. Even though PW2-the injured eye witness and the first informant supported the case of the prosecution, there are material contradiction as referred to above. Further, even the medical evidence is not supporting the case of the prosecution that the injury infl icted by accused No.2 by assaulting the deceased on his head with the handle of axe has resulted in the death of the deceased. Further, we do not f ind any specif ic evidence worth believing against accused No.2 for being the author of the fatal injury to result in the death of the deceased. Further, we do not f ind any specif ic evidence worth believing against accused No.2 for being the author of the fatal injury to result in the death of the deceased. Under such circumstances the decision relied on by the learned advocate for the appellant assumes importance. 26. The trial Court could not have formed an opinion that the materials on record are not sufficient to convict accused No.1 and that he is entitled for benefit of doubt and at the same time, holding the very same evidence is sufficient to convict accused No.2. When the prosecution invoked Section 149 of IPC and made specific al legations against accused No.1 and 2 in particular, the evidence of the witnesses placed on record is to be either accepted or rejected whol ly against these accused, unless the specif ic overt act al leged against accused No.2 is suff icient to form a different opinion. Further if the evidence of the witnesses is to be spl itup to grant benefit to one of the co-accused, by acquitting him while convicting the other, specif ic reason is to be assigned to deny parity. Therefore, we are of the opinion that the trial Court committed an error in coming to the conclusion that the prosecution is successful in proving the guilt of accused No.2 for the offence punishable under Section 302 of IPC. 27. It is also pertinent to note that neither the complainant/victim or the State have preferred any appeal chal lenging the acquittal of accused No.1, 3 to 10 for the offences al leged against them and also acquittal of accused No.2 for the other offences, including 307 of IPC. 28. In view of the discussions held above, we are of the opinion that the prosecution has fai led to prove the gui lt of accused No.2 for the offence punishable under Section 302 of IPC and he is entitled for benefit of doubt. Accordingly, we answer the above points No.1 in the negative and No.2 in the affirmative. As a result of which the appeal preferred by accused No.2 deserves to be allowed and he is entitled to be acquitted. Accordingly, we proceed to pass the fol lowing:- ORDER The appeal is allowed. Appellant accused No.2 is acquitted. Accordingly, we answer the above points No.1 in the negative and No.2 in the affirmative. As a result of which the appeal preferred by accused No.2 deserves to be allowed and he is entitled to be acquitted. Accordingly, we proceed to pass the fol lowing:- ORDER The appeal is allowed. Appellant accused No.2 is acquitted. The judgment of conviction dated 31.03.2016 and the order of sentence dated 04.04.2016 passed by the learned Additional District and Sessions Judge, Gadag in S.C. No.24/2014 is set aside and the appellant accused No.2 Shankarappa S/o. Gulappa Hadapad is hereby acquitted. His bai l bonds and surety bonds stand cancel led. If any fine amount has been deposited by the appel lant accused No.2, the same may be ordered to be refunded to the appellant accused No.2 on proper identif ication and acknowledgment.