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2021 DIGILAW 809 (KAR)

Shiva v. State of Karnataka

2021-08-09

K.SOMASHEKAR

body2021
JUDGMENT : K. SOMASHEKAR, J. 1. In this appeal, the appellants are challenging the judgment of conviction and order of sentence rendered by the trial Court in S.C. No. 151/2011 dated 09.05.2014 whereby the accused are convicted for the offences punishable under Sections 148 and 326 read with Section 149 of IPC. Therefore in this appeal the appellants are seeking for setting aside the judgment of conviction and order of sentence rendered by the trial Court for the aforesaid offences and consequently to acquit them. 2. Heard learned Counsel Sri A.H. Bhagavan for the appellants and learned HCGP Sri Rahul Rai. K. for the State who are present before the Court physically. 3. It is transpired in the case of the prosecution that in Naguvinahalli village in Mandya, there was some petty dispute emerged between the complainant and the accused persons. Therefore elderly persons in that village gathered to decide the dispute emerged amongst them by constituting panchayat. Accordingly on 31.05.2010 at around 9.00 a.m. elderly persons being the heads in the village and also some other persons had gathered near Siddappaji Temple. 4. One Thimmaiah S/o. Kenchaiah and his sons Mahadevaswamy, Lokeshaswamy as well as the complainant and other villagers Siddaraju S/o. Kalaningaiah, Cheluvaraju S/o. Thimmaiah and others had gathered in that panchayat. Accused No. 2 and other accused persons had also come for attending the panchayat. When panchayat was started immediately accused Nos. 1 and 2 asked CW.2 Thimmaiah and his son Mahadevaswamy as to who are they to conduct panchayat and started assaulting CW.2- Thimmaiah and his sons. Along with them, they had brought sickles and by keeping them in their waist, accused Nos. 1 and 2 have abetted other accused to kill CW.2 and his sons. By taking out sickle accused No. 1 assaulted Thimmaiah on his head, accused No. 2 assaulted Thimmaiah on the back side of the head with chopper. When his son Mahadevaswamy came to rescue his father, they assaulted Mahadevaswamy on his right hand with sickle. Accused No. 5 assaulted Mahadevaswamy on his head and he also assaulted another son of CW.2 Lokeshaswamy with knife. Thereby Thimmaiah, Mahadevaswamy and Lokeshaswamy sustained grievous injuries and started to run towards their house. 5. It is further alleged that accused No. 9 has assaulted Thimmaiah with club by chasing them. Accused Nos. Accused No. 5 assaulted Mahadevaswamy on his head and he also assaulted another son of CW.2 Lokeshaswamy with knife. Thereby Thimmaiah, Mahadevaswamy and Lokeshaswamy sustained grievous injuries and started to run towards their house. 5. It is further alleged that accused No. 9 has assaulted Thimmaiah with club by chasing them. Accused Nos. 7 to 11 have chased Thimmaiah and his sons up to their house and they have thrown the bricks and stones to his house door. Thus the door of his house was damaged. It is further alleged that the accused persons were shouting to finish Thimmaiah and his sons. Subsequently, the injured were taken to Srirangapatna Government Hospital. As per the advise of the Doctor, they were shifted to Mysore Hospital for further treatment. However, prior to that incident with reference to construction of Ambedkar Bhavan there was a quarrel between the parties in that village. Due to that enmity accused persons have utilized the gathering called by village elders and committed an incident. 6. In pursuance of the act of the accused, on filing of the complaint by the complainant, the criminal law was set into motion by registering the case by recording the first information report as per Ex. P18. Subsequent to registration of the crime, the Investigating Officer has taken up the case for investigation. On completion of investigation, the Investigating Officer has laid the charge sheet against the accused persons before the Committal Court. Thereafter the committal order has been passed by the committal Court as under Section 209 of Cr.P.C., and consequently the case has been committed to the Court of Sessions in Mandya District and numbered as S.C. No. 151/2011. The trial of the case against the accused was conducted before the III Additional District & Sessions Judge, Mandya (Sitting at Srirangapatna). 7. Subsequent to committal of the case, the Sessions Court framed the charges against the accused and the accused did not plead guilty and claimed to be tried. Accordingly, the plea of the accused were recorded separately. Subsequent to framing of the charge, the prosecution in all examined as PWs.1 to 16 and so also marked Exs. P1 to P19 inclusive of MOs.1 to 17. 8. Accordingly, the plea of the accused were recorded separately. Subsequent to framing of the charge, the prosecution in all examined as PWs.1 to 16 and so also marked Exs. P1 to P19 inclusive of MOs.1 to 17. 8. Subsequent to the closure of evidence of the prosecution, the incriminating statement as under Section 313 of Cr.P.C. was recorded and the accused have denied the truth of the evidence of the prosecution adduced so far. However, the accused did not come forward to lead any defence evidence as contemplated under Section 233 of Cr.P.C. 9. Subsequently heard the arguments addressed on behalf of the prosecution and so also learned Counsel for the accused and on appreciation of the oral and documentary evidence available on record, the trial Court arrived at the conclusion that the prosecution has proved the guilt of the accused and convicted the accused for the offences as incorporated in the operative portion of the order. The said judgment of conviction and order of sentence rendered by the trial Court which has been challenged in this appeal by urging various grounds. 10. Learned counsel for the appellants has taken me through the evidence of PWs.1 to 4 relating to the concept of intention in order to take away the life of the injured by Accused persons. But the trial Court has erroneously come to the conclusion by holding that the prosecution has proved the guilt of the accused and even the motive factor such as the intention causing injury to the injured person. The trial Court having acquitted the appellants of the offences punishable under Sections 448 and 427 r/w 149 of IPC and 307 IPC, but erred in convicting the appellants for the offences punishable under Sections 148 and 326 read with Section 149 of IPC without appreciating the evidence on record and convicting the accused persons relying upon the evidence of PWs.1 to 3 who are the interested witnesses on the part of the prosecution and testimony of those witnesses also it appears that there are contradictory and also inconsistent but they are the interested and partisan witnesses on the part of the prosecution. But the trial Court has not appreciated the evidence in a proper perspective manner. Therefore, in this appeal it requires for intervention of this Court, if not, the gravamen of the accusation would be the sufferers. 11. But the trial Court has not appreciated the evidence in a proper perspective manner. Therefore, in this appeal it requires for intervention of this Court, if not, the gravamen of the accusation would be the sufferers. 11. The specific case of the prosecution even at a nutshell of the substances and the charges leveled against the accused is that on 31.05.2010 at 9 a.m. there was some petty quarrel in the Naguvanahalli village and due to that the village elders had gathered to decide the dispute in panchayat at Siddappaji Temple, Naguvanahalli Village. But the prosecution has not examined any panchayatdars or the elderly persons of the village in order to show that panchayat was conveyed and during that Panchayat the said incident has occurred as narrated in the complaint and in the FIR said to have been recorded by the police having the jurisdiction and laid charge-sheet against the accused. 12. PWs.1 to 3 being the injured witnesses and they are the partisan witnesses had agreed that in their village there are elders to be termed as headsman in the village. There shall be senior headsman and junior headsman and they are the elderly persons in the village. But they were not examined. Therefore, non-examination of the village elders is fatal to the case of the prosecution. This vital aspect has not been considered by the trial Court in a proper perspective manner but bank upon the evidence of PWs.1 to 3 who are the injured persons. But at a cursory glance of the entire evidence of the prosecution and mainly the evidence of PWs.1 to 3 the prosecution has not clearly proved or established the fact that all the accused with a common object were present at the spot and caused injuries to the injured witnesses as per the wound certificates at Exs. P6 to P8. Therefore, in this appeal, it requires for re-appreciation of the evidence as where the trial Court has misread the evidence that too be the evidence of PWs.1 to 3 and also rescanning of the evidence and the material documents which got marked by the prosecution, if not, certainly there shall be some miscarriage of justice to the accused persons who are the gravamen of the accusation. 13. 13. The primary contention made by the learned counsel for the appellants that there was no unlawful assembly constituted and there was no common object for the members of the assembly to assault. They had assembled to convey the meeting to thrash out some dispute emerged in between the parties. But the issue regarding the dispute is not forth coming even though the prosecution has subjected to examine PWs. 1 to 10 and got marked several documents inclusive of wound certificates at Exs. P6 to P8. But the trial Court has erroneously held that the accused persons caused the injuries to the injured persons and also having intention to take away the life of PWs.1 to 3 by the accused Nos. 1 to 11 who are facing of trial. The trial Court having held that there was no intention to take away the life of PWs.1 to 3 by the Accused persons by using the deadly weapons such as MO.1 - Sickles four in number, MO.5 - knife, MO.6 - Club, but erred in holding that they had intention to cause injury. But however, in this appeal it requires for intervention by re-appreciating the entire evidence on record in terms of rescanning of the material evidence of PWs.1 to 3 and so also, the wound certificates at Exs. P6 to P8. 14. Whereas, the learned counsel for the appellants in this matter has filed affidavits of Thimmaiah, S/o Kenchaiah, Mahadevaswamy, S/o Thimmaiah and Lokeshswamy, S/o Thimmaiah. In the said affidavits they have stated that they are the injured eye witnesses in S.C. No. 151/2011 on the file of III Addl. District and Sessions Judge, Mandya (Sitting at Srirangapatna). They have compromised all their differences with the accused persons in the above case and themselves and accused persons are living in the same locality in peace and harmony and that harmonious relationship in between the injured persons and also the accused persons would be maintained and also continued. All these three persons are the injured eye witnesses and they have filed the affidavits specifically stating that they are residing in the same locality by maintaining peace and harmonious relationship. Consequently, seeking for consideration of the factum of compromise and considered in the appeal filed by the accused persons before this Court. All these three persons are the injured eye witnesses and they have filed the affidavits specifically stating that they are residing in the same locality by maintaining peace and harmonious relationship. Consequently, seeking for consideration of the factum of compromise and considered in the appeal filed by the accused persons before this Court. On all these premises, learned counsel for the appellants seeking for allowing the appeal by considering the grounds as urged in this appeal and consequently, set-aside the judgment of conviction and order of sentence rendered by the trial Court and acquit the accused from the charges leveled against them. 15. On controvert to the arguments advanced by the learned counsel for the appellants and so also, referring the affidavits filed by the injured eye witnesses in S.C. No. 151/2011, which is stated supra, learned HCGP for respondent-State submits that the prosecution has proved the guilt of the accused by subjecting to examine PWs.1 to 16. PWs. 1 to 3 are the injured eye witnesses and the injury has been inflicted with means of MOs.1 to 4 - sickles four in numbers, MO.5 - knife and MO.6 - club and the injuries has been caused by the accused which is indicated in Exs. P6 to P8, the wound certificates issued by the Doctor. Ex. P10 is the Requisition of X-ray and Ex. P11 is the X-ray. These are all the vital documents on the part of the prosecution to prove the guilt of the accused. Even at a cursory glance of Ex. P1 - complaint and panchanama at Ex. P2, and the seizure panchanama at Ex. P4 which are conducted by the investigating officer as according to the voluntary statement given by the accused during the course of investigation but, however, the trial Court has arrived at a conclusion by appreciating the evidence of PWs.1 to 3 coupled with the evidence of remaining witnesses and where the accused have been caused for infliction of injuries upon the injured as indicated in Exs. P6 to P8 - wound certificates. Mere because of filing of affidavits by the injured eye witnesses stating that they have arrived at a compromise and they are living in the same locality and maintaining peace and harmony between them, but it is not a ground for setting aside the judgment of conviction and order of sentence. But the incident occurred on 31.05.2010 at around 9. Mere because of filing of affidavits by the injured eye witnesses stating that they have arrived at a compromise and they are living in the same locality and maintaining peace and harmony between them, but it is not a ground for setting aside the judgment of conviction and order of sentence. But the incident occurred on 31.05.2010 at around 9. a.m. wherein the panchayat was constituted by the elderly persons. But these accused persons with an intention to take away the life of PWs.1 to 3, had arrived at the panchayat by holding deadly weapons and took up quarrel with CWs.1 to 3 and abetting for the other accused to finish CWs.2 to 4 and consequent upon the abatement coupled with the other accused assaulted PWs. 1 to 3 with the means of deadly weapons. The trial Court has appreciated the evidence of PWs.1 to 3 in a proper perspective manner. Therefore, under this appeal, it does not arise for intervention for seeking acquittal of the accused from the charges leveled against them. On all these premises, learned HCGP is seeking for dismissal of the appeal being devoid of merits. 16. It is in this context of the contentions as taken by the learned counsel for the appellant and so also, counter made by learned HCGP for State, it is relevant to refer the evidence of PW.15 being the investigating officer who has stated in his evidence that he took up the case for further investigation from PW.16 - Gangadhar and then proceeded with the case for investigation. That on 29.06.2010 he secured the wound certificates as per Exs. P6 to P8 in order to filing of the charge sheet against the accused. That on 03.07.2010 he secured the remand register relating to the scene of crime as per Ex. P12. Ex. P4 is the seizure mahazar conducted in the presence of the panch witnesses and also seized the MOs.1 to 4 - sickles four in number MO.5 - knife, based upon the voluntary statement of Accused No. 1 as per Ex. P13. So also, Exs. P14 to P17 the photos were also got marked. But there are no negatives of the said photographs. Subsequent to completion of the investigation, he laid the charge sheet against the accused before the Court having the jurisdiction. P13. So also, Exs. P14 to P17 the photos were also got marked. But there are no negatives of the said photographs. Subsequent to completion of the investigation, he laid the charge sheet against the accused before the Court having the jurisdiction. Though this witness has been subjected to cross-examination, but nothing worthwhile of evidence has been elicited on the part of the defence in order to dismantle the case of the prosecution as contended. 17. PW.16 - S.T. Gangadhar being the PSI has stated in his evidence that he received complaint on 31.05.2010 at around 11.00 a.m. as per Ex. P1 and based upon the complaint the criminal law was set into motion by registering the case in Crime No. 265/2010 by recording FIR as per Ex. P18. Subsequent to registration of the crime he visited the scene of crime and in the presence of the panch witnesses, he drew the spot mahazar as per Ex. P2. On that day at around 12.15 p.m. to 1.45 p.m. drew the spot mahazar and secured the blood stained mud and unblood stained mud and also subjected the fist size club and also brick pieces two in number and cement bricks two in number. Subsequently, he drew the map of scene of crime. During the course of the investigation, he has recorded the statements of Cheluvaraju, Siddaraju, Suma, Jayalakshmi, Shailaja, Sundaramma and also recorded the statement of one Sundaramma as per Ex. P5. He has further conducted the seizure mahazar as per Ex. P3 and complainant had subscribed his signature. This witness has been subjected to cross-examination on the part of the defense, but nothing worthwhile has been elicited by the defense counsel to disbelieve the version of the statement of witnesses as well as the theory put forth by the prosecution to prove the guilt of the accused as contended. 18. It is relevant to refer the evidence of PW.5 - Somesha who was subjected to examination on the part of the prosecution on 26.07.2013. He has stated in his evidence that he rushed to the scene of crime only after having heard some sound of altercation took among the persons gathered in front of Siddappaji Temple. 18. It is relevant to refer the evidence of PW.5 - Somesha who was subjected to examination on the part of the prosecution on 26.07.2013. He has stated in his evidence that he rushed to the scene of crime only after having heard some sound of altercation took among the persons gathered in front of Siddappaji Temple. But he did not written the contents of the complaint and he did not see the incident also and specifically he do not know for what purpose the villagers had gathered in front of Siddappaji Temple, Naguvanahalli Village. This witness has been treated as hostile and thereafter subjected to cross-examination on the part of the prosecution, but nothing worthwhile has been elicited in the fulcrum of Ex. P2 - spot mahazar said to have been conducted by PW.16 being the investigating officer in part. 19. PW.6 - Shivayya was also subjected to examination and he has subscribed his signature at Ex. P4. He did not know the contents in that mahazar. He was acquainted with PWs.1 to 3 being the injured witnesses and equally he was acquainted with CW.12 - Revanna. But accused Nos. 1 to 4 have not produced the sickles four in number and also the chopper as well as the knife. But subsequent to treating this witness as hostile that he was subjected to cross-examination on the part of the prosecution but nothing worthwhile has been elicited to believe the fulcrum of Ex. P4 - mahazar said to have been conducted by the investigating officer. 20. PW.7 - Sundaramma was also subjected to examination on the part of the prosecution. That about two to three years back, at about 9.30 a.m. to 10.00 a.m. that there was some altercation that took place near Siddappaji Temple. Therefore, she do not know for what reason the altercation took place and she do not know whether the panchayat has been constituted in Naguvanahalli village nearby Siddappaji Temple. Even she do not know whether the accused persons were also present at that place as where the panchayat alleged to have been constituted. This witness has been treated as hostile and incisive cross-examination was done but nothing worthwhile has been elicited to disbelieve the theory put forth by the prosecution to prove the guilt of the accused. She has given a goby to the version of her statement at Ex. P6. 21. This witness has been treated as hostile and incisive cross-examination was done but nothing worthwhile has been elicited to disbelieve the theory put forth by the prosecution to prove the guilt of the accused. She has given a goby to the version of her statement at Ex. P6. 21. PW.8 - Revanna was also subjected to examination on the part of the prosecution and this witness has been given a goby to the version at Ex. P4 and he has stated in his presence the accused persons have not produced the sickles four in number and knife and the police did not shown the aforesaid deadly weapons for having seized in his presence by considering the mahazar at Ex. P4. This witness has given a goby to the fulcrum of Ex. P4 and so also, did not elicited in the cross-examination by the prosecution after being treated as hostile relating to MOs.1 to 5. 22. PW.9 - Ramesha was also subjected to examination on the part of the prosecution and he has also given goby to the version of the statement made by him before the investigating officer. That for about 1½ years back, while he was returning to the village nearby the channel that the police took his signature. But when he subscribed his signature, no person was present and the police did not appraise him about the fulcrum of the mahazar. This witness has given a goby to the version of the fulcrum of Ex. P2 after having being treated as hostile but nothing worthwhile has been elicited by the prosecution to prove the guilt of the accused. 23. PW.11 is the Doctor who treated the injured Thimmaiah, who was aged 77 years and he noticed the injuries inflicted on him three in numbers and issued wound certificate. He further subjected to examination the injured - Mahadeswamy and issued wound certificate and so also, the wound certificates issued in respect of Lokeshswamy who was subjected to medical examination by him. But the injuries on the injured - Lokeshswamy is simple in nature. Accordingly, issued the wound certificates as per Exs. P6 to P8. But there shall be some injuries inflicted on the right thumb. This witness has been subjected to examine by the prosecution and also subjected to cross-examination on the part of defense in relation to Exs. But the injuries on the injured - Lokeshswamy is simple in nature. Accordingly, issued the wound certificates as per Exs. P6 to P8. But there shall be some injuries inflicted on the right thumb. This witness has been subjected to examine by the prosecution and also subjected to cross-examination on the part of defense in relation to Exs. P6 to P8 - wound certificates issued by Doctor in respect of the injured persons. 24. Counsel for the appellants has filed the affidavits of PWs.1 to 3 before this Court. In these affidavits they have stated that they have compromised all their differences with the accused persons in the above case and themselves and accused persons are living in the same locality in peace and harmony and that harmonious relationship are maintained by them. All these three persons are the injured eye witnesses and they have filed the affidavits specifically stating that they are residing in the same locality by maintaining peace and harmonious relationship. Consequently, seeking for consideration of the factum of compromise and considered in the appeal filed by the accused persons before this Court. 25. But under this appeal challenging the judgment of conviction and order of sentence rendered by the trial Court in S.C. No. 151/2011. But PWs.1 to 3 being the injured and PW.6 being the panch witness in respect of seizure of deadly weapons alleged to have been used by the accused and marked as MOs.1 to 4 sickles four in number and MO.5 -knife and MO.6 - club. PW.7 is the eye witness to the incident as in the complaint and PWs.9 and 10 are the witnesses to the mahazar. PWs.11 and 14 are the Doctors who were subjected to treat PWs.1 to 3. Though the PWs.1 to 3 have been subjected to cross-examination on the part of the prosecution, but it is noticed that there are some inconsistencies and contradictions and those contradictions were required to be appreciated by the trial Court in a proper perspective manner as they are the injured and so also, interested and partisan witnesses but scrutinized their evidence with due and care for arrival of proper conclusion, if not, it would cause miscarriage of justice. 26. 26. It is also relevant to refer that there are some civil suits emerged in between the groups of persons relating to the construction of Ambedkar Bhavan in Naguvanahalli village such as O.S. No. 94/2006 and O.S. No. 95/2006. Even there was criminal prosecution case initiated in between two groups of the Naguvanahalli village in Crime No. 83/2008. These are all the evidence that has been elicited by the defense for having subjected to examination of PW.1- Thimmaiah in S.C. No. 151/2011. Therefore, in this regard one can infer that there shall be some civil dispute relating to the construction of Ambedkar Bhavan in Naguvanahalli village and that the civil dispute had turned into criminal dispute among the two groups in that village and as such the incident is said to have taken place between them. PWs.1 to 3 being the injured witnesses have been subjected to examination, but they have specifically stated in their affidavit that they have compromised all their differences with the accused persons and are living in the same locality in peace and harmony by maintaining harmonious relationship. 27. In the instant case the civil in nature of the case has been turned into criminal in nature and consequently, the incident has taken place. But under this appeal challenging the judgment of conviction and order of sentence rendered by the trial Court acquitting the accused persons for the offence under Sections 448 and 427 read with Section 149 of IPC but convicting for the offences punishable under Section 148 and 326 read with Section 149 of IPC. The trial Court has made an observation that the available evidence on record is not sufficient to prove the offence punishable under Section 307 of IPC but the prosecution is able to prove that accused persons have committed an offence punishable under Section 326 of IPC. Therefore the trial Court has arrived at such conclusion since the right thumb was inflicted with an injury caused by assaulting with deadly weapons used by the accused. Even at a cursory glance of the evidence of PWs.1 to 3 and PW.4 regarding pelting of stones to the house of PW.1, the trial Court has come to the conclusion that there is no evidence on record regarding the damage caused to the household articles and also accused trespassing the house of PW.1 and committed the house trespass. Even at a cursory glance of the evidence of PWs.1 to 3 and PW.4 regarding pelting of stones to the house of PW.1, the trial Court has come to the conclusion that there is no evidence on record regarding the damage caused to the household articles and also accused trespassing the house of PW.1 and committed the house trespass. But PWs.1 to 4 have deposed that they have locked the door from the inside and accused persons have thrown the bricks and stones pieces to the door, but trial Court held that the said evidence is not sufficient to prove the offence under Sections 427 and 448 read with Section 149 of IPC. When there is a doubt that has arisen on the part of the prosecution but the clouds of doubt even on one count of offence or more count of offence, but the degree of the offence has been in a holistic approach are required that the accused have used the deadly weapons by unlawful assembly and committed an offence. But the trial Court has arrived at a conclusion that there shall be rioting by using deadly weapons as per Section 148 of IPC. However, Section 326 of IPC though there is grievous in nature of the injury inflicted on PWs.1 to 3 respectively, but they have come forwarded in this appeal by filing affidavits stating in detail that even though differences are there with the accused persons, but they are living in the same locality in peace and harmony and the harmonious relationship shall be maintained and continued in the society and then only the peace and tranquility would be maintained. But in this appeal even though has been dwelling in detail of the evidence of PWs.1 to 3 inclusive of PW.4, but it requires for rescanning of the evidence and so also, the material documents which are got marked on the part of the prosecution, if not, there shall be miscarriage of justice would caused to the gravamen of the accusation and they would be the sufferers. Therefore, in view of the aforesaid reasons as well as the peculiar facts and circumstances of the case, it needs for intervention of the impugned judgment of conviction rendered by the trial court. Accordingly, the appeal deserves to be allowed. Hence, I proceed to pass the following: ORDER: The appeal preferred by the appellants/accused Nos. Therefore, in view of the aforesaid reasons as well as the peculiar facts and circumstances of the case, it needs for intervention of the impugned judgment of conviction rendered by the trial court. Accordingly, the appeal deserves to be allowed. Hence, I proceed to pass the following: ORDER: The appeal preferred by the appellants/accused Nos. 1 to 11 under Section 374(2) of Cr.P.C. is hereby allowed. Consequently, the judgment of conviction and order of sentence rendered by the III Addl. District and Sessions Judge, Mandya (sitting at Srirangapatna) in S.C. No. 151/2011 dated 09.05.2014 is hereby set-aside. Consequence upon setting aside the judgment of conviction and order of sentence, the accused are acquitted for the offence punishable under Sections 148 and 326 read with Section 149 of IPC.