Dollegowda vs The State Of Karnataka on 3 February, 2009

 

I

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 339 DAY OF FEBRUARY 2009
BEFORE

THE HON'BLE MR. JUSTICE A s PACHHAPf,J.R'E:. A R"

CRIMINAL APPEAL NO.1l17:'OF' -: RA

BETWEEN:

1. DOLLEGOWDA
AGED ABOUT 60 YEARS
S/O. MOLLEGOWDA A '

2. KULLA@CHELUvA  I
AGED ABOUT 38rYEARS'""»f: _  - 
S/O. MOLLEGBWPH  2:   _ 

3. KATTE @ NARAS-EGOWD'A'j'.-- A  
AGED 55   B,  A  " 
S/O. MOLLEOOWDE 

4. NARAYANSWAMY @fBADI_GE4 
AGED ABOUT 30   '
S/O. DOLLWOOWDA  

 ALL ABE AT ONIKERE...

 DODDAMARALAVALI VILLAGE
 KAIaIA_Kz'1PUAR:'...TALUK

"BANGAiO'RE RURAL DISTRICT

B}?£NGALORI£j«.. '  APPELLANTS

 (BY SE1 sBAN:€ARAPPA, ADV.,)

» .  _ j~   ';~:1*A*1*E~--OE KARNATAKA
'P   "Bir..BAPOBALLY POLICE STATION
 BANGALORE RURAL  RESPONDENT

    {BY SR] SATISH R GIRJI, HCGP)



mi'

1}

that injury NO.1 is grievous and injury NO.3 is simple.

Ex.P.6 is also the certificate issued by the doctor at the first 
instance i.c., at about use am. and those injuries 
been referred to above. Ex}-".'? is the injury certificate    is
by the doctor after his examination at    
So, Ex.P.6 is the injury certificate issu}g1_ "   A

cxa1nm1n' ' g P'W.1 at 11.30 a.m.,  is  

of Victoria hospital, who  _at obout
p.m. and issued the injury 
PW. I was taken to the'   was
maated by w. 12,     1:-w.1 on

4.9.96 at 2.15_p_.;n.=~  Ex.P.8

and even according ..1\__lO.1 is grievous, as them

was fiactum of ' tho   ire has given his opah Jon'
on the  'cfthca     So, if we consider the

 3;,-:§;t,«eV of   to supra, it reveals that the

  the laocrated wounds, abrasions
   iixe right buttock. In this context, if the
" 'évidgncg prp'w_:'1-and other 3 witnesses i,c., Pw.2, 5 and 5 is

  it is the specific version of an these witnesses
~  No.2 caused the assault with the spade,
 accused No.3 assaulted with the club and accused

 No.4 assaulted with the machhu. The doctor has opined

M



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that these injuries can be caused by the weapons stated

above.

11, So, the perusal of the witnesses of the  

corroborates the version of the ev1d' ence of~PW$.   

6. So far as the Part Played by accused   i"t--A

concerned, the evidence of all these  Vis.co'n,siSte'nt,. 

and cogent. There is no material   fa'-I'flas_t?I1e
part piayed by accused Nos.  ,4  Though,
an effort has been made in   nothing
relevant has   V'  discard the

evidence of these wét11e.939¢&. K '  

12.  is concerned, though
PW.1 states. that   accused Nos. 2 to 4 to cause
théJt.assantt' on  ""  evfl enee has not been

cong,:3gm;¢a, hy.:,:&tit1eAV,.ei{§:dence of ms. 2, 5 and 6. PW.1

 'E-,3;.1tes   1 instigated the other accused to

 asseuit, whereas PW2, 5 and 6 does not say

  eeqegaxtls the instigation and the mere fact that

  was present there is itself not suflicient to

 the accused N01 has shared the common

 iotenfion with the other accused. The trial Court, so far as

accused No.1 is concerned, has relied upon the evidence of

 



I3

PW.1 about the instigation to cause the assault. But, as his

evidence is inconsistent with the evidence of Pws 2, 5 and 6, H

I think it would be just and proper to extend the benefit sf'

doubt to the first accused. Complete re1:an' cc o1':I,;A. -5 

evidence of pvm by the trial Court view""af.::j'fi1é':::'~

inconsistency is improper.

13. So far as the spot ?f2  

though the pmosecution has   3
and 4, they have net supppxied   of the
prosecution and in   =  fact that
these all attesting is itsekt' not
suficient to    tiaeiheresfigating oficcr,
who states   ;.g,aa.hazar, Ex.P.4 in the
presence of the 

  "e  established principle of law that

   flees not  an innocent and

_ 'c19es.1;ot lee:ve V1'a.;peI"son who reafiy caused the harm. In that

C mefler, the evidence of PW .1 which has been

 by the evidence of PW2, 5 and 6 strengthens

  V .  of the prosecution as regards the part played by

 Nos. 2, 3 and 4. It is also wen established pnncx' "pk:

of law that whenever there are more than one accused

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:""-widence  is diluted. Generally, whenever an
 'goes to the hospital for the purpose of the
  severe injuxies, he may not give all the details

' V"  itaciclent and even may not mention the names of afi
'V   But, the fact that the complaint, Ex.P.1 refers

  the name of accused N02 and his end' woe is

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arrayed in a case, the Court has to be cautious and make an

 

effort to remove the grain from the chafi. So far as 

Nos 2 to 4 are concerned, them is consistent, cogent and'
acceptable version but, as regards accused N11 1, the   j" 
of doubt has to be extended, as the evidencecf   .
been corroborated by P'Ws.'2, 5 and 6. It-:ienc§e,A~    '«
opinion that accused No.1 is entitledttto"-can  of   

The prosecution has examined  
carried the Fixst "V-tite"BȤ!Iagis11'ate,
whereas P'W.8 is the   is the

police oficer, who  the  Pws. 9, 10

and 12 ate the   Though: the
defense got   extract, the
relevant exlhydhaxs.  Ex.D.1(a) and (b) and

the perusal of    the names of accused

    that the compiainent did not

tell  oeofie  NO.2, it does not mean that the

corroborated by the evidence of Pwe. 2, 5 and 6, I am ofthe

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opinion that Ex.D.1 did not have any such efiect to diiute the

evidence lead by the proseeufion. in that View of the matter, 

looking to the evidence lead by the prosecution, I do not  "

any such serious discrepancy or material contradicatlofa  2." 

far as the ev1d' ence lead by it against accueezi' P303.    

therefore, their conviction for the  it]   

324, 325 R/W Sec.34 IPC is 1ega1'5a;§_;c:..Vva1i&   
appeilants have not made outzeny  
interference. So far as the    as
there is serious doubt wit}: mgaxe   in the
crime and there  ino    he shared
common intention of   entitled to the
onder of  1   9i' the point partly in
afiinnative    proceed to pass the
following:  ..  Vt ''  

ORDER

allowed. Conviction of accused

” ‘~(appe1}én_t3 No. 1) is set aside. He ‘m acquitted of the

324, 326 RIW Sec. 114 of the me. His basil

. cancelled. The conviction and sentence of

‘Lt Nos. 2 to 4 (accused Nos. 2 to 4) for the ofienoe

pnnjshable U/S 32-4 R/W Sec. 326 RIW 34 of me is

confirmed. Their bail bonds are cancelled. The trial Court is

5/_,_

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dirccmd to secure the presence of the said accused Nos. 2 to

4 (appellant Nos. 2 to 4) to undergo the sentence. They are _

entitle to set 011’ U] S 428 C1r.P.C.

BN8.