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Mallappa Gurulingappa … vs State Of Karnataka Reptd By State … on 21 July, 2008

Karnataka High Court
Mallappa Gurulingappa … vs State Of Karnataka Reptd By State … on 21 July, 2008
Author: V.Gopalagowda & Nagaraj


IN THE: HIGH COURT or KARRATAIEA’ u
cmcurr amen AT G-ULBARGA; ~

DATED: 21″ DAY

p1zmsm’% *

was 1-1oN’nLE Hr.JU8’l’I(§EV_V.(§OP’£xL,AA

THE HONBLE m.J1:s’1*1éE menu
cmm1_jggg_L mi;%%L121 1(‘ 2006

Aged about 24 ‘A
Occ: Student.. V

Prabhu rmbnumfiga ‘Gmmmgappa Yalavantagi,
Aggzéi about 3SA~§(cars,V

0Q.g:’:.flEkAtC11z1t .’.- …..

. Yalavantag’,

Aged abdtit ’23 years,
Ocg: AgIi_c1;l’iure.

@ Basavaraja Guralingappa Yalavantag,
.. about 28 years,

. ‘ .-‘Agiculture.

._l§ia11adevappa Gumhngappa Yalavantagi,
Aged about 50 years,

Occ: Agriculture.

Gurulingappa Maflapm Yalavantagi,
Aged about

Occ: Agriculture.

€._x’v~./««»..

All are residents of

Ramanahalli,

Sindagi Taluk, _
Bijapur District.

(By Sri Ashok Patil – Advocate)

And:

State of Karnataka,

Rept. by State Public Prosecutor. 7f.

(By Smt.

.- o

Cri.iAv Cr.P.C against the
order dated_8′-‘$52906 by the ?r1. Sessions Judge,
Bijapuriii ‘S, C.No;.’f4*/

ThisV’C:?MlM.A for hearing before the Court

this, t;_iay’,,u}3on . Araii Nagaraj, J, delivered the

«, A. ….. <4

JUDGQIIT

.__TThe herein, who were accused Nos. 1 to

in S._C}}No.74/2005 on the file of learned Principal

' Judge, Bijapur (hereinafter referred to as the

h K ffsessions Judgefl, have challenged the judgment and

' order of conviction dated 8~»6–2006 passed in the said

case convicting all these accused Nos.1 to 6 for the

offences under Sections 148, 302, 506 Part-II read with

perused the impugled judgment and

evidence on record – both oral and dd" ' K

4. The point that aI’ises:”for;’o’e£” .

this appeal is d d V

“whether the impagned ‘and
order of wfiizence _ 08.06.2fl06
passed by the” iearxzgi 2 Judy in
ac No.74I2005_ H czxnvictimig ._Appe!!ant-
accusedfips 1_.”to”6:for-_;tl:1_e ofigfences under
sectiegns”;J.48,’3G’2;” !’/w 8 149
is”aueta*¢::ab!.§’ in 3″aer_?’f._ V

Our the ‘Negative’ for the
foi1ov§éing:”_ A dd d

” brief the case of the prosecution as

gagged :_i1i5t£1:e’*comp1ajnt dated 274.1-2004 (Ex.P-2) filed

complainant Nagappa Deni, R/0.

Devareiizipparagi, District Bijapur is as under’:-

(a) the complainant’s daughter
Smt.Bhagirathi(PW-3) was given in
marriage to one Thammanna of
Devarallippawg villw, who is the
deceased herein. There was some
civil dispute between the deceased
and the accused herein in respect of
some agicnltural land. Thenefoxe,
the accused Neel to 6 on the em

(b) On 27/ 11/2004 at about 8_.’f3G=
the dcccasw Tham”niat1x:<a_ 'went. V
the land situated at i'?aH1'aDa11'£..a1ct1g at ;
with Sidanagcuda K__Basanagfc_uda'~
Patil (PW-9) and-another'

side and the deceased on the other, V.

were not in good terms with
other.

Manimgappa Muisavalaa’-t 10)
saying that he Wastgcizgg to’ the said
land to tltasi-;”‘g1}t>ur1siflnut
While the». _ct>1_n§)1a:§z”:at2t’vvtWas in his
house 011′ vV.cwrenu1g,
Sidda8fla80u:ia_;–.. r;nadc’% a
tclcphcncfizand *i.!1’1dCI’:

~ abcut”~.1;–30 ‘p;m;”; on that day
_ wb.iVEcV file’ . Siddanagcuda
” ‘ an.d’M”alI1}:{a1. ‘ _ “:31 were in the said land,
jaccuscd Nos. 1 to 6 came

L”-there -._hc1dizig stones and wooden

_ ” aaigvabel-Kaagfithale” and, while saying
the accused Nos.1

‘ c~7rc9spcctivc1y Prabhu, Shivaputrappa
V and

sticks; pickccbup quarrel with the

saying “(:16 magane
ncc obbane

ms,

MaJ]aPP3¢ assaulted the
deceased with stones on his back
and neck, consequently, the
deceased fell to gonad saying
“Sathenecppa”, then, the accused
Ncs.4 to 6, namely, Mahadevappa,
Basappa and Gumlingappa
assaulted him with wooden clubs
(sticks) and thereby all the accused
inflicted severe injuries on the
deceased. On seeing the said
incident, Siddanagcuda and

Malakalji (respectively PWs-9 and
1())went to rescue the deceased but
they were threatened by all the ”

accused saying “ele soole ‘ _
neevu munde bandare ”

kondu haakthivi”. ‘I’heref0re– «
kept quiet. Thereafter,’-. ail ,the . V
accused persons left the;-eaifi place; ” ”

Then, both Sidderzeegclmda eat} = V’ T

Malakaxji took Vthe deceased,
was sevelely iI1ji1f6£I;”tO the ehoepiftal’,
The Doctor that he.wasV3
dead.” –

(C) After the
by ‘the — over

p..hene__ as above, “the; complainant
T’ weéat Hospital at
._ A1ej::2e1_ _with his daughter
Smt..Bhé*.g1’1*afl’1i and saw that the
dead. Thereafter the
“cemp1ai11a11t”~*Went to Alamel Pelice
Stéiiign lodged his oonzlplaint as
‘per Ex.’Pf;.'”

.”:SI’i: ‘g;.5iShOk Patil, learned counsel for the

strongly centended that PW–2 the

Nagappa, who is the fa1:her–in-law ef the

lodged his complaint Ex.P–2 on the basis of

information said to have been gven by Pws-9 and

‘V 10 respectively Sicidanagouda and Malakalji as to the

eccurance ef the alleged incident of assault en the

deceased by the accused, but these two .,
though have deposed that they saw V’

deceased by some six persons .10) V’
took the injured deceased tothe have *
supported the ease of the as d V
of the accused as the and
therefore, the a

serious error” re:L’–_or:1izig = find1’ngs that the

r”-~r”””””””‘”‘

V .

prosecutioxz; V. eeaéonable doubt

,» < '\1:he alleged fizggigiéflt Z appellants-«accused are
liable to' Jsaid ofienees.

4;’3’~. above submissions of the

aPI3’311ants-accused, learned

um though PWS 9 and 10 have turned

_ hoe1:é.Ie prosecution as to the identity of the

d H H ‘T the assailants who inflicted total Wounds on

the evidence of PW—-2, to whom both the

T witnesses informed that it was these appellants-
‘ A. accused who actually assaulted the deceased and also

the evidence of PWU5 the Head Constable, before whom

<–«~~~f'~«–«/"~

/4
r' A-

‘ e–{)f:E’;eer _ eeqnd the post mortem examination and

also the said witnesses disclosed the J:
accused as the assailants, was suflicient .,

Sessions Judge to base the oonvietionoef

accused for the said ofi’etnces..__

3. The flact aieee homicidal
death as a. iesult of him due to
the assault ondihe place is not
disputed. by the prosecution
beyond’ the evidence of PW-4
the to i’anehanamas and Ex-P4,

the Aseenei””‘ef_ offeneeiijfianehanama; PW-13 the L0

the Viiénchanamas; and PW~–I the Medical

issued the post mortem examination report.

‘Therefore, as rightly submitted by the learned ASPP,

A the learned Session Judge has not raised a
i ..se1:>arate point for his determination as to the homicidal

A V death of the deceased, the same is not fatal to the

prosecution mse. This submission is not opposed by the

learned counsel for the appeliantvaecused. In order to

connect these accused with the inflicting of ,

on the deceased which resulted in his V’

prosecution has refied upon the;v’6i;§a5l’

the complainant Nagappa, A.

Bhoothalappa and P.Ws.9 axui ~10 siadamgéugiae and A

Malakaxji the two .’V1 »;L0,.the ‘ vihéident of

assault on the A»

9. On’ averments in the
complairxtfif-§’;i§:,i!: that the comp1a1nan’ t
has 7-30 pm on that day while

he was Siddanagouda informed him

” _oveifj;’*p1}eI;eA at§6ut——–tixe death of the d%sed in the

at Alamel while he was under treatment

fer sustained by him and also about the

‘-».i11cidei1§ 1~of assault by the accused on the deceased at

L30 p.1n on that day near the agicultural land of

IN–guy-“”_”\

.é complainant situate}! ét’ Ramnalli village. He has

further stated in his evidence that at about 7-30 pm on

that day he received telephone call fmm the said

Siddanagouda) (P.W-9) asking him to go to Govemment

10

Hospital at Alamel and accordingly he Went there and

saw that the deceased Thammanna was dead 9

and 10 were present there. He has further _

on maldng inquiries with them, PW–9 V» D»

him that accused Nos.I to 3 assiavultedn

back and Waist with stones…

assaulted him with wooden hover.’ ‘ ldiee, back,
waist etc. and conseqttentiy fell on the
gound saying on the basis of
the said the police station and
lodged the 1*-=.o2;

_ .10. of the evidence of PWS 9

‘ could that though they have stated in

both of them were together with the

time when he was assaulted by some

Lpedtoohs near the land of the complainant at about

A on that day, they have further deposed that

‘d could not identify the assailants as the amused

A V herein. After they came to be treated hostite, the

learned public prosecutor cross-examined both these

11

witnesses. Duri;:1g the course of cross-examination both

of them have denied the suggestions of the _4

prosecutor that P’W~9 stated before the ‘A

investigation as per Exs.P-14 aad__P- f.-£5″ dd” 2

stated as per Ex.P-16. The of

and 16 is only to the 3 ” L’

assaulted the deceased Nos.4
to 6 assaulted him and thereby

mm’ ‘cted iIti1II’ieS;’o..r_1 Exs ~— P14 to 16

do not either of these
PWs 9 J10 complainant over phone or

when he ttie Vfiospital and saw the deceased

.’ V. assaulted the deceased on the

place. It is not even suggested to

L mesa 1?Ws.dte9 and 10 that either 1==w–~9 or PW-10

4″‘–«VJte1epho’ned to the eomplamam t on the said evening and

him that these accused assaulted the

VT on that said date, time and plam or that any

V U of them so informed PW-2 when he saw the deceased in

the hospital dead.

(»~_..I””‘-‘”°s..-«–~~~…-

time and place as alleged in the complaint Ex.P-2 and
that on the basis of the said iI1fo1*rna1§or1″””—the

mmplainant lodged the complaint.

12. Coming to the evidence of PW«5H _

the H.C., he has stated that

27/11/2004 while he wasgtlfxe seem Aieeieiii

station, PW-9 Siddanagoude”i’ea1:._ine him’
that the deceased with
serious injuries by But it is not

his ” him that it was the
accused”w_ho% on the deceased. On the

otheij’ -5.: has admitted to have stated

“L0 “” EX~D2 that the villagers of

I n” e ‘:3 assaulted the injured (Deceased).

_ Besid.es=..’ though he has deposed further that the

_ .. , ” tof P.S. came to the hospital by about 5.45 p.111.

iit;fiVei3.”i:Ir1e said Siddanagouda disclosed the names of the

T ‘e{:1p1’its; the said PSI (PWJ7) has not stated that he

3 visited the said hospital at 5.45 p.111. an that day and at

that time PW-9 Siddanagouda disclosed before him

rm__A_{\,,,,,,.,a»-\.,_,,_,.~

14

names of these accused as the assailants on the

deceased. P°W–»5 has further deposed that while

that information, the said Siddanagcuda

to accompany him and also to help hilt:

injured to the hospital and ‘}_1.e:..: ‘gotu_’t};evi’

injured admitted in GeneI’a1.i~£c.spit£J_.v.””*

13. Though the fieendiificnstablc
has further stated in L rite that said

Siddannagout1a’:cc;itafor3§tt§t;5;’ deceamd was

assaulted clues by the accused, he did
not reccdxdhisd (complaint) and register case

the of the said incident For

the smtment (complaint) of PW-9 and not

__ this witness has explained in his

d d c evidenee th,9′:t though he asked the said smdanagouda to

d d his complaint, he told him that the relatives of the

–‘ would come and lodge the complaint and

‘ ” mttxelefere he was not going to lodge any complaint.

14. The above evidence of 1391-5 goes to show that

though the incident occurred at about 1-30 pm on that

{t%§'”‘-w~c,»»

day, the complaint came to be registered

about 930 13.11: on that day. Though

registering the case or in dispatelgjng of.«F’1’R: ” =

be fatal to the prosecution in ie;

this particular case, in m.7et%%orttd;¢ fact!

Siddanagouda waited for the of. to
come and lodge View of the fact
that he has case that it
was thesoi. deceased and
of the deceased
which his death, the possibility of

lodging by PW«2, who is none

” othe;’fi1an’vt~t11e dddumm of the deceased, aftm’ due

V”oo:mot be ruled~ou.t. The learned Session

V Judg e sight of this aspect of the case.

to ‘V % 15. i Though it is not disputed by the appellants-

that the death of tlm deceased was homicidal,

T that Pws 9 and 10 were present when the dmsed

V U was assaulted and therefore the clothes worn by them

came to be stained with blood which came out through

L. MWV»

‘dM,_,,

16

the injuries sustained by the deceased and such blood

stained clothes were seized by the L0 and, tl1of1eg_VI’2..’_::t..'<1e

scene of offence is not disputed, the fact

the connection of the accused v_;?i1:h__1;he_– K " V

deceased as alleged in the conap1a:nt %

been proved by the pmsééedtjon * L'

doubt. When the Very ide1VA11;.itVVj"Lvo1°"–»t11e as the
assailants on the by the

prosecution beyond we have no

hesitaf,::':vod1edvI'f;o" Sessions Judge was
not _in’ the appellant-accused Nos. 1

to 6 for Therefore, the present appeal

d % aswesetosg answed and the impugned judgment and

is liable to be set aside. Hence we

_ afiswer..__vthe§jA)oix1t, raised by us in this appeal in the

d H H ffleytdive; and pass the following,

0 R D E R
We hereby allow the present appeal and set aside

X h the judgment and order of conviction dated 8/6/2006

passed by the learned Pxincipal Sessions Judge, Bijapur

i…,–…,_,( “””x…«—~’–“*

17

in Sessions Case No.74/2005 and acquit an%j%me

appellanbaccused Nos.1 to 6 of the oflences

under Sections 148, 302 and 506 ‘

Section 149 I.P.C. The bail bondlof §’:’141{:h o»f

as are on bail shall “and;_i0f L.

amused who are in central 4;»: liberty
forthwith, if they be in
custody in The order of
the as it relates to

disposafii i ken: undisturbed.

The of this order shall be

v Afazthwith to the Superintendent, Central

Sd/~
Judge

Sd/-

Judge

MP–bpy2’788

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