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2023 DIGILAW 1311 (KAR)

Srinivasa v. State of Karnataka

2023-11-16

MOHAMMAD NAWAZ

body2023
JUDGMENT 1. The judgment and order of conviction and sentence passed by the Court of Principal Sessions Judge at Chikmagalur in SC No.103/2010 against the appellants/accused Nos.1 to 3 for the offences punishable under Ss. 341, 506 and 307 r/w Sec. 34 of IPC is assailed in this appeal. 2. I have heard the learned counsel for the appellants and the learned High Court Government Pleader for the respondent-State and perused the evidence and material on record. 3. Charges are framed against the appellants/accused Nos.1 and 3 for the offences punishable under Ss. 120B, 341, 506, 307 and 326 r/w Sec. 34 IPC. The learned trial Judge was pleased to acquit the accused persons of the offences under Ss. 120B and 326 r/w Sec. 34 IPC and convicted for the other charged offences. 4. The case of the prosecution is that there was a dispute between the accused persons and the complainant with regard to a road. Since the complainant's son i.e., injured-PW5 was using the said road, all the accused conspired with each other to take away his life. On 27/3/2010 at about 9.30 a.m. when PW5 was proceeding on his motorcycle so as to go to Jayapura, all the accused wrongfully restrained him from proceeding further, abused and threatened him and assaulted him with clubs with an intention to commit his murder and caused grievous injuries to him. 5. PW5 is the injured and he is the material witness to the incident. His evidence and the evidence of the medical officer-PW8 will be discussed at a later point of time, after discussing the evidence of other witnesses. 6. Ex.P1 is the complaint lodged by the mother of the injured. In Ex.P1 it is stated that when her son was proceeding on his motorcycle so as to go to Jayapura on 27/3/2010 at 9.30 a.m., all the accused stopped him and saying that the road does not belong to his father, picked up quarrel with him and assaulted him with clubs on his head, ear, back etc., and caused bleeding injuries. Hearing the commotion, Shankarappa (CW7) rushed to the spot and on seeing him, the said accused threw the clubs at the spot and ran away threatening her son with dire consequences. 7. Hearing the commotion, Shankarappa (CW7) rushed to the spot and on seeing him, the said accused threw the clubs at the spot and ran away threatening her son with dire consequences. 7. The incident has taken place on 27/3/2010 at about 9.30 a.m. PW10-PSI of Jayapura Police Station has deposed that at about 12.30 p.m., on 27/3/2010, PW1 appeared before him and lodged the complaint- Ex.P1 and he registered a case in Cr.No.22/2010 and issued FIREx.P7. Thereafter, on the same day he apprehended accused Nos.1 to 3 and produced them before the Court with the remand application. He has further stated that on 28/3/2010 PW1 appeared before him and gave further statement and he sent a memo to include Sec. 307 of IPC. 8. In her further statement, PW1 i.e., the complainant has stated that since her son was injured and he was being given treatment, she could not narrate the entire incident. She has stated that there was a dispute in respect of a road between accused No.1 and themselves and the said road was used by them to approach their house but accused No.1 was not allowing them to use the said road, however, they were using the said road. It is further stated that on 28/3/2010 they were supposed to go to Thirthahalli to see a girl for her son i.e., PW5. Due to previous enmity, on 27/3/2010, all the accused conspired with each other and to teach him a lesson wrongfully restrained him while he was proceeding on a motorcycle. Accused Nos.1 to 3 assaulted her son with clubs. Hearing his scream, she along with Lokamma W/o Shivappa went to the spot. At that time all the accused threatened her son and ran away from the spot. She has stated that accused No.2 was holding the club while running away. 9. In her further statement, PW1 has stated that her son was shifted to Jayapura hospital for treatment with the help of one Gopalakrishna and from there he was shifted to Wenlock hospital, Mangaluru, for further treatment. 10. In Ex.P1, it is stated that the accused persons threw the clubs at the spot and ran away. Further it is stated that accused No.2 ran away holding the club. The complainant-PW1 in her evidence has deposed that the accused are her husband's uncle's son. She has stated that there was a dispute in respect of a road. 10. In Ex.P1, it is stated that the accused persons threw the clubs at the spot and ran away. Further it is stated that accused No.2 ran away holding the club. The complainant-PW1 in her evidence has deposed that the accused are her husband's uncle's son. She has stated that there was a dispute in respect of a road. On the date of incident her son wanted to go to Agalagandi and from there to Jayapura on a motorcycle and at about 9.00 a.m., she heard his screaming few minutes after he left the house; immediately she went in front of the house of the accused and saw the accused persons assaulting her son. She has stated that accused No.2 was assaulting her son with club and he was trying to assault him on his head but the blow hit on the side of his left ear. When her son fell down, accused No.1 assaulted on his left shoulder and back; accused No.3 also assaulted on the right arm and right leg. Immediately, her son lost his consciousness. Thereafter, the accused persons threatened him with dire consequences. On seeing CW2(PW2), CWs.7 and 8 approaching, the accused persons ran away. She has stated that accused Nos.1 and 3 threw the club at the spot and accused No.2 ran away holding the club. 11. A perusal of the cross-examination of PW1-complainant goes to show that her house is on the eastern side and the house of the accused is on the western side, which are situated at about distance of 60 feet and between two houses there is a public road which leads to Sringeri and Koppa. She has stated that the dispute is in respect of a road which leads to Sringeri and Koppa, which is admittedly a public road. What is relevant to be seen is that in her further statement she has stated that the accused persons have assaulted her son with clubs and after hearing the screaming voice of her son, she along with one Lokamma (CW8) went to the spot and at that time the accused threatened them with dire consequences and ran away. The evidence of PW1 that she has seen the accused persons assaulting her son with clubs appears to be doubtful. The evidence of PW1 that she has seen the accused persons assaulting her son with clubs appears to be doubtful. In her evidence also she has stated that she heard the screaming of her son few minutes after he left the house and therefore, she went to the spot and saw the accused persons assaulting her son. Though in her statement she has stated that she along with Lokamma (CW8) went to the spot, in her evidence she has stated that after she went to the spot on hearing her son's screaming, CW2-shivappa(PW2), CW7- Shankarappa and CW8-Lokamma came there. 12. The prosecution has not examined CWs.7 and 8. CW2-Shivappa is examined as PW2. The said witness has deposed that on hearing the hue and cry, CW8 his wife went out of the house and he also followed her and by that time the injured had fallen on the ground. He has stated that they gave some water to the injured and took him to Jayapura Hospital in the autorickshaw of CW10 (PW7). The said PW2 has not at all whispered the presence of PW1 at the spot. PW2 is also an attestor to Ex.P2-spot mahazar. He has stated that he does not know the contents of Ex.P2. In the cross-examination conducted by the public prosecutor he has denied that he has seen the accused persons assaulting the injured with clubs. However, he has stated that he saw all the three accused persons running away from the spot and accused Nos.1 and 3 threw the clubs at the spot. 13. Another important witness is PW6. According to him CW7-Shankarappa informed him about the incident of assault and therefore he went to the spot and found PWs.1, 2, 5, 7 and 8 present. He saw PW5 with the injuries and called CW10 (PW7) over phone to bring his autorickshaw. Thereafter they shifted PW5 to the hospital. He has stated that he came to know that the accused persons have assaulted PW5 because of the dispute between them with regard to the road since 2-3 years. In the cross-examination he has stated that blood was oozing from the nose and ear of the injured and he was in a position to speak. He has not stated that when he went to the spot, PW5 had lost his consciousness. 14. PW7 is a auto driver who shifted the injured to the Jayapura hospital. In the cross-examination he has stated that blood was oozing from the nose and ear of the injured and he was in a position to speak. He has not stated that when he went to the spot, PW5 had lost his consciousness. 14. PW7 is a auto driver who shifted the injured to the Jayapura hospital. He has stated that on being informed by PW6, he went to the spot and took PW5 in his autorickshaw to Jayapura hospital. By that time, PW5 had sustained bleeding injuries and his clothes were blood stained and he came to know that he sustained injuries due to assault. 15. From the above discussion, it could be seen that, there was some dispute between the two parties with regard to a road since 2-3 years and on the date of incident when the deceased was proceeding on his motorcycle, PW1 heard the screaming voice of her son and she went to the spot and saw the accused persons assaulting and running away from the spot. According to her, accused Nos.1 and 3 threw the clubs on the spot and accused No.2 ran away holding the club. In view of the discrepancy noted in her statement and the evidence and the improvements made, it is already observed that PW1 could not be an eyewitness to the incident. Even the evidence of PWs.2, 6 and 7 go to show that they came to the spot after the incident was over and they have not witnessed the accused persons assaulting the injured-PW5. However, according to the witnesses, they have seen the accused persons running away from the spot. 16. PW10 after registering the case and recording the further statement of PW1 on 28/3/2010, has gone to the spot on 29/3/2010 at about 10.00 a.m., and drew the spot mahazar-Ex.P2 and seized two clubs which are produced by PW1. The said clubs are alleged to have thrown by accused Nos.1 and 3. It is very difficult to believe that for two days the said clubs were lying at the spot. In spite of registering the case on 27/3/2010, PW10 has not gone to the spot immediately and seized the clubs. Seizure of the said clubs-MOs.1 and 2 which are alleged to have thrown by accused Nos.2 and 3 at the spot, appears to be doubtful. 17. In spite of registering the case on 27/3/2010, PW10 has not gone to the spot immediately and seized the clubs. Seizure of the said clubs-MOs.1 and 2 which are alleged to have thrown by accused Nos.2 and 3 at the spot, appears to be doubtful. 17. PW5 is the injured and he is the material witness in this case. He being an injured, his evidence does not require any corroboration. If the evidence of an injured is found to be truthful and reliable, then, on the basis of the sole evidence of the injured, conviction can be based. 18. PW.5 has deposed that on 27/3/2010 he was proceeding on a motorbike to go to Agalagandi and Jayapura from Elemane and he left at about 9.30 a.m. At a distance of 30 feet from his house, accused No.1 to accused No.3 by holding the club obstructed him from proceeding ahead. Accused No.1 asked him as to why he is going on that road and whether the road belongs to his father. Further, saying that 'one gati kanastini', they tried to assault on his head with a club and the said blow hit on his left ear and immediately he fell down. Accused No.1 saying not to leave him assaulted with a club on his left shoulder and right leg. Accused No.3 - Nagappa assaulted with a club on his trunk and left leg. When he made a hue and cry, PWs.1, 2 and CWs.7 and 8 came there and gave him water. Accused No.2 ran away holding the club and accused Nos.1 and 3 ran away throwing the clubs at the spot. Thereafter, he was taken to Jayapura Hospital in the Auto of CW.10 by PWs.1, 2 CWs.7 and 8. 19. From the above evidence of PW.5, it can be seen that after he was assaulted by accused Nos.1 to 3 and after he raised a hue and cry, other witnesses namely PWs.1, 2 CWs.7 and 8 came to the spot. He has stated that accused No.1 tried to assault him on his head, but the said blow hit on his left ear. He has further stated that accused No.1 assaulted with a club on his left shoulder and right leg and accused No.3 assaulted with a club on his trunk and left leg. 20. He has stated that accused No.1 tried to assault him on his head, but the said blow hit on his left ear. He has further stated that accused No.1 assaulted with a club on his left shoulder and right leg and accused No.3 assaulted with a club on his trunk and left leg. 20. PW.5 has further stated in his evidence that he was first taken to Jayapura Hospital, wherein they told that they are unable to treat him, as such he was taken to Koppa in an ambulance and there also they told to take him to a Super Specialty Hospital and therefore he was taken to Wenlock Hospital. According to him he was in the Wenlock Hospital from 27/3/2010 to 17/4/2010 i.e., for more than 20 days. 21. Ex.P6 is the MLC sent from Jayapura Hospital to the Police. PW.8, working as a Medical Officer at PHC, Jayapura. PW.8 has deposed that on 27/3/2010, PW.5 was brought to Jayapura Hospital by PW.1 with a history of assault by the accused persons at about 9.30 a.m. near his residence. He has stated that, on examination he found fresh bleeding in his left ear. He gave first aid treatment and referred him to a higher centre. 22. A perusal of the evidence of PW.8 goes to show that apart from giving first aid he did not give any treatment to PW.5, but he referred PW.5 to higher centre i.e., on the same day. Though the defence taken by the accused is that due to a fall from the motor cycle, PW.5 sustained injuries and due to previous enmity, accused are falsely implicated, the same is not proved by leading any evidence. PW.5 has denied the said suggestion. The evidence of PW.8 is that the injured was brought to the hospital with the history of assault by accused persons. However, what is relevant to be seen is that according to PW.5 from PHC at Jayapura he was taken to Koppa Hospital and from there he was taken to Super Specialty Hospital i.e., Government Wenlock Hospital and he was admitted there for more than 20 days. Except Ex.P4 i.e., the wound certificate issued by PW.8, the prosecution has not produced and marked any documents pertaining to the treatment given to PW.5. Except Ex.P4 i.e., the wound certificate issued by PW.8, the prosecution has not produced and marked any documents pertaining to the treatment given to PW.5. A perusal of the evidence of the investigation Officer - PW.10, who filed the charge sheet goes to show that even on 1/5/2010 he recorded the statement of the witnesses i.e., PW.9 and on 7/5/2010 after receiving the opinion from PW.8 as per Ex.P5 and after completion of investigation he filed charge sheet. If PW.5 took treatment from 27/3/2010 to 17/4/2010, certainly he would have collected the documents pertaining to the treatment given to PW.5, when he filed charge sheet. He has admitted that except Ex.P4 there is no other medical documents or reports pertaining to PW.5 has been either collected, produced or marked in evidence. 23. According to Ex.P4, the wound certificate issued by PW.8, injury sustained by PW.5 is on the left ear with fresh bleeding present. It is stated that as per the CT report, there was a fracture of left temporal bone left mastoid Hemosinus, facial nerve, decompression under GA on 8/4/2010 etc. The said wound is described as grievous in nature. However, neither the CT report nor any other medical documents pertaining to the treatment given to PW.5 at Government Wenlock Hospital are placed on record. 24. In the wound certificate it is mentioned that there is a fresh bleeding in the left ear present. As per PW.9, sister of PW.5, she collected the blood stained clothes of PW.5. However, the blood stained clothes are not seized. PW.5 has stated that she went back to Thirthahalli and washed the clothes. The Investigation Officer - PW.8 has admitted in the cross-examination that in Ex.P4 he has not mentioned that there is profused bleeding in the left ear of PW.5. It is also relevant to see that though PW.5 has stated that accused Nos.1 and 3 have assaulted him on his shoulder, trunk and legs no other injuries are mentioned in Ex.P4. In the crossexamination, PW.5 has stated that when accused No.1 assaulted him on his shoulder and left leg, he sustained bleeding injuries and when accused No.3 assaulted, he sustained contusion. But only one injury is mentioned in Ex.P.4. 25. In the crossexamination, PW.5 has stated that when accused No.1 assaulted him on his shoulder and left leg, he sustained bleeding injuries and when accused No.3 assaulted, he sustained contusion. But only one injury is mentioned in Ex.P.4. 25. In so far as seizure of club-MO.2 from accused No.2 is concerned, according to the prosecution, all the three accused were apprehended on the same day of incident i.e., on 27/3/2010 at about 1.30 p.m. PW.10 has stated that after following the arrest procedure by bringing the accused to the Police Station, he produced them before the Court with remand application. However, no club was seized at the instance of accused No.2 after his arrest. MO.1 and 2 were seized from the spot, on 29/3/2010 i.e., after two days of the incident and according to PW.10, on 27/4/2010 i.e., after one month from the date of incident, accused No.2 appeared before him and produced the club and same was seized under a mahazar marked as Ex.P3. The seizure of club-MO.3 at the instance of accused No.2 which is after one month from the date of incident, appears to be doubtful. It is not explained by PW.10 as to why on the same day of arrest of accused No.2, club was not seized. 26. Another aspect is, it is brought on record that there was a counter complaint lodged by the wife of accused No.1 by name Smt.Shantha in Crime No.23/2010 against PW.5. Registration of the said case has been suppressed by the prosecution. In the cross-examination, PW.10 has admitted that he has registered the said complaint in Crime No.23/2010 against the injured. He has stated that 'B' report was submitted in the said crime and the same was challenged and the case is pending before Court. Even if 'B' report was filed, the fact remains that in respect of the very same incident a counter case was registered against PW.5 which has not been stated either by PW.1 or PW.5. 27. The learned counsel for the appellants submits that the said case was registered against PW.5 for the offences punishable under Sec. 324 and 506 of IPC wherein PW.5 has assaulted and caused injuries to accused No.1. 27. The learned counsel for the appellants submits that the said case was registered against PW.5 for the offences punishable under Sec. 324 and 506 of IPC wherein PW.5 has assaulted and caused injuries to accused No.1. Considering the entire facts and circumstances of the case and having reappreciated the entire evidence on record, I am of the considered view that the evidence of PW.5 and other witnesses is not trustworthy and that does not inspire the confidence of the Court. The accused are therefore entitled to benefit of doubt. The trial Court has failed to take into consideration the above aspects and therefore, the impugned judgment and order of conviction and sentence passed by trial Court is liable to be set aside. Accordingly, the following: ORDER The appeal is allowed. The judgment and order dtd. 5/6/2012 passed by the Court of Principal Sessions Judge at Chikmagalur in S.C.No.103/2010, convicting the appellants/accused for the offence punishable under Sec. 341, 506 and 307 r/w Sec. 34 of IPC is hereby set aside. The accused/appellants are acquitted of the offence punishable under Sec. 341, 506 and 307 r/w Sec. 34 of IPC. Their bail bonds are cancelled.