CRL.A. NO. 468 OF 2oo4:~ E PRESENT IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 14'?" DAY OF SEPTEMBER, 2010 THE HONBLE MR. JUSTICE K.sREEDHARjR2$_O_:"'«,VA AND THE HON'BLE MR. JUSTICE 3.:/;"PI$I?frj""» CRL.A. NO. 468 oF"2e7o4°-.t CRL.R.P. N_0-361 OF 2004 ' _ BEIw"1£ENe;.}':::, state"'by1'Ma1ur:I>c$1:c;%.v « .. .. . 2 (By S_ri (}D.Ef311_Vava.1%;-i Singfi, spp) ' _ 'V"zZeI'Tk'afcVe'r:.happa, "S"/*0. Baehappa, Ageifi about 40 years. E .. ;N,<':lg<":4'tpp£1, S10. Bachappa. Aged about 26 years, Dhanegowda, S/0. Bachappa, Munishamappa, S/0. Bachappa, Aged about 26 years, Appellant 5. Lakshrnana, S / 0. Baohappa, Aged about 22 years, 6. Shekar, S / o. Bachhappa, Maj or, 7. Srinivasa, S/o. Bachappa, . Aged about 18 years, i 8. Lalithamma, ._ pg --. W/o. Nagaraja N'agap_pg;.__ Aged about"28 'grears," = V. Agl'Jagai*aj11,"~.pV"' _ Aged alo'out"22 'yearsg, -- . 10. :'va:i11thayrafiiffia',"'--. A ' if W/lo. Venkatelshap'pa, ' " Aged a"o.o_u't 35 years, . 2 ~ ,5/o_'.~..Ci1--i.kkabyrappa, 0' ~tMa.J0r;iset.e"' Pe'thanahalli. .. ""All.are R/o. Nallappanahalli village, -Malur taluk. Respondents
AB. Patil, Sr. Counsel for Mylaraiah Assts., Advocate)
This Crl.A. is filed U/s.3″/8(1) 8: {3} of Cr.P.C. by the
N State PP. for the State praying that this Hon’ble Court may
be pleased to grant leave to file an appeal against the
judgment dated 31.10.2003 passed by the Prl. S.J., Kolar, in
S.C.No. 136/95 — acquitting the respondents/accused for the
P ..
offences pumshable U/s.143, 148, 323, .;ru/w.
Sec.149 of IPC and U/s.3, 4 and 5 of the I;::idiane_Ex1’j1o_siVe
Substances Act. The Appellant/State pra3,r_sV_§h.g1t’V–.tV:1*;e aIv:L)é)veb
order may be set aside.
CRL.R.P. NO. 6}. OF 2004:-
BETWEEN:–
Smt. Ram,
W/0. Ragashekar,
Aged about 26 years, ‘ J __
R/ at Bappanahalli v1’11age._ V
Huralagerl P.o..~3ta, I ‘
Malur Taluk, ‘ _. , .
Kolar D1s§tf1ci_;’—-. e
…. _ Petitioner
(By Sri K.S’.1\?:_,K§11’an’tE1’V,’A§jVQCa.te)
Andy
1 , ‘V Sri Vefikateshsppa,
Nfigappa.
1″ . «A ” “Sf i_”_vI)__f1;e_iriegowcia,
Munishamappa,
A. __ Lakshmana,
7f6;e sn Shekar,
‘ ” Sri Srinivasa,
S1. N0s.1 to 7 are children of
Sri Baehappa, all are majors.
10.
11.
Smt. Lalithamma,
W/o. Nagaraja @ Nagappa,
Age Major,
Smt. Sumithramma,
W/o. Nagaraju,
Age Major,
Smt. Munithayamma, ~ j
W/0. Venkateshappa,
Age Major,
Malur Taluk, _
Kolar District, –
Now R;/’atjifianakanahalliw Vi11–age.,…=
Vakka1erii’QjIiob1i,t_’ __ .
Tf1}€WaI1’ét151:.a.11i~– Post)’ ‘ . ‘ .
All are R/0. Naliéappanahtaiii ,
Koiai’. <3: Diet_r1ct.« ._ V ,
A
Sjo.' Chikkabyrapoa;
Age .._41\/iajor, . 7
L
. _ Pethan_aha1h.
Hoskote”Ta1uk, .
Bangalore District.
” M. of Karnataka,
“i-‘{ep.__ byits State Public Prosecutor,
I-iighl Court of Karnataka,
Bangalore.
V’ ..[By Stir-‘A.B. Patil, Sr. Counsel for
” l\/iyiaraiah Associates for R1 to R11)
2_(By5Sri G; Bhavani Singh, SPP for R12]
Respondents
This Cr1.R.P. 1s filed U/s.397 r/w.Sec/101 of Cr.P.C. by
A “the Advocate for the petitioner praying that this Hon’ble
Court may be pleased to set aside the judgment and order
%
dated 31.10.2003 passed by the Prl. ‘in
S.C.No.136/95. ” ” — ‘ ”
This Appeal & Revision Pet1t’i’on« coining’for._hear1’ng’=onbT. 00
this day, PINTO. J., delivered the folilovyingfp ‘ *
Jvnamshi.
These two cases ofggsameijvudgrnent dated
31.10.2003 passed the– Judge, Kolar in
s.e.No.13s/1,995 acq’tiita§1g_” alvle.th-eflrespondents of the
offences :f1:48,0é3, 324 and 302 I’/’W.
Sec.lv49ggv 4 and 5 of the Indian
Explosives Su’bstar1lees~A«ct._. 15908.
g 2. –. w*1q:1;».a State'”has filed Cr1.A.No.468/2004 against
o3;der.h_of ackzjueittal, the injured complainant —- PWl has
0 /2004. Since both cases relate to same
‘incident,’ ilcommon judgment is passed.
“3: The parties in this appeal are referred as per
0′ rank in the trial Court.
4. The Malur Police registered a case in Crime
No.11l/1995 on 15.03.1995 on the basis of complaint of
1
Kumari K. Rani, D/o. Krishnappa for the aforesaid offences
against 14 persons. It is alleged in this complaint that grand
father of the complainant Gopalappa has three brothers and
last son of Gopalappa was Bachappa who was h_awrir1g_s.even
children by name Venkateshappa, Nagappa,»
Munishamappa, Lakshrnana, Srinivasa ;anc1{j~shekar. _1»I¢=;:–._
grand father Gopalappa and Bach__hap’pa:’ar’eliving’ separéictely .
and her father is having twiogrnalefchildrenand..tWQ_:3femalcf’
children. The complaint is thereldest daughter and she has
stud:iled”f’u’p.::r.0 w’as’wuflrorking in the house after
completii).g her alleged in the complaint that on
O5.()3. 1S§95fa”t am. the Survey Officers had come
Gram Panciiayath to survey and measure the lands and
‘ village. One Krishnappa and Bill Collector
“ocpa1ap-fig another person had come near the house of
the cornplainant at 11.00 a.m. and they had started
if measuring the land of Venkateshappa. They have come to
fimeasure the house of the complainant. At that time, the
father of the complainant requested them to measure the
house. At that time, the accused persons objected for
measuring of the house stating that there is a case ” pending
against the said house and therefore, the.-yy.hadj—-.5&;.afi.olus
objection for measuring the house. Thereafte:r.gt’he’–Survey.
Officers who had come to measure the.h:ou’s.e1 left tlheii’-place.’ It .
is in the complaint that ther-e_afterl’ the Acc:.1s’efdvN_os._}i to
mentioned in the complainltfltcvame nearflto the place of
occurrence holding chain and hand
bomb. They assaultedH_compl.a,inanifsVhfather Krishnappa. The
accused ‘}LriVshnappa by means of
knifelon fell down. The uncle of the
comlflainant assaulted by Dhanegowda by
means ofklriifego_nAAhis’~~–sltomach. Kenchappa also fell down.
hlereafftevr thelllcovmpiainant and others went near the place
‘ gland both Krishnappa and Kenchappa and brought
hinside house. At that time, the accused Dhanegowda
Bhagyamma on her right hand, Nagappa assaulted
2 Venkatamma by means of knife. After that, Nagappa throw
hand–bomb. Due to the blast, Nagappa had sustained
l bleeding injuries on his thighs. At that time, her uncle
Sriramappa also sustained injuries by bomb. Srinivasa and
Lakkappa have assaulted the people of complainant’s_side by
cycle chain. Govindappa and Anjanappa
injury by cycle chain. Dhanegowda has
by knife. Gopalappa also fell dovvh. tell i’
down, Munithayamma came _and assau1ted,o’n.the
of Gopalappa by legs. Lalithaifiina alf1d.l&:SuVinithramma by
holding clubs have vassau1t_;ed_Ajnjanvappa and t}ov1’r1dappa.
Bhagyamma assaulted clubs on his head.
Hence, all of gl:oldin§’llclub_s:.fdin their hand have
assaullted’-the is dalsolflstated that at the time of
incident; .Sui1andanil1n_a’,t’—Sltzashikala, Bhagyamma, Renuka,
Jayanthamiha yaIv1dAA~\lei~”-Jziatamrna have also witnessed the
A ….. .. ‘V
the basis of the said complaint, the police
have condticted investigation and filed charge sheet against
x the acciised. The accused were arrested and in View of the
lstatement of PW1 and other witnesses, the Accused Nos.13
___and 14 were also added in the charge sheet with the aid of
Section 109 of UPC.
6. A9 — Bhag/amma being a juvenile,4,aVt~s’ep_arate
charge~sheet was filed against her and A14
and A5 died during trial. Hence, Al to A4;i-;’X.t§::’to ‘Afs,4.A:o’
A13 faced the trial.
7. The trial Court..:’framedV’ the charges
against the accusedzj,
A-1 to 8; with absconding
accused__no.14_.an.d:=.A~;-9 “on 15.3.1995, at
about~’1’EeAp:.f.\’M, Eat Nallappanaha_lli, within the limits of
Maiuf themselves into an unlawful
assem’bly–,w._ object of which was to commit
“muu’rder’ s / 0 Gopalappa, Kenchappa s/0
_ Gopalappélg. anud’~~-cause hurt to C.W.4 Aswathappa,
. it C.W.2§” V-V,evr__1__1ga,tamma, C.V\/.26 Bhagyamma, C.W.27
E””‘tCp}oyin,dappa, C.W.28 Srirama, C.W.29 Gopalappa due
p”rop’e.rty dispute and thereby they committed an
drfgeneé punishable under Sec. 143.
Secondly, on the aforesaid date, time and place
‘ub;eing the members of an unlawful assembly and in
prosecution of the common object of such assembly,
accused committed rioting, and at that time they were
armed with deadly weapons like, cycle chain, clubs,
and dagger, which weapon if used as weapon of
/%–
ll}
offence likely to cause death, and thereby V~tl’i-ey’-shave
committed an offence punishable %
Thirdly, on the aforesaid date, time lpiace,’
the accused being the members *7:i;:~ .l’uril.awfull’; it
assembly, and in prosecution ,oftl1el’comirion Chjéégi’ of
such assembly, Accuse_d–9 and i0 assaillteldzwiththeir
hands to C.W.4 Aswathappa, A-4,’ 7* ..a_r1,dlllltllassaulted
with hands and legs .g25_vVenkata,mma, and A–11
and 12 caused C,g;W.29»Ciopalappa by stamping
with legs, and thelrebyjl an offence
punishable. w sec 49.
theaforesaidwsdate, time and place
of an unlawful assembly,
[and inlfirosecution’ of the common object of such
as.sembly*,– .. VA-S voluntarily caused hurt to
Krisltnappa clubs, A-1 voluntarily caused hurt to
.I§1ishna15p’a—-~b~y” stabbing with a knife on his back, A-3
.,Vv0lu,r_i’tai’ily caused hurt to Kenchappa s/ o Gopalappa
‘ ‘V-.l§y,,vgsta,bb’ing with a knife to his stomach, A-6 and A-8
Voluntarily assaulted Kenchapa with cycle chains, A–3
it .. yoluntarily caused hurt to CW4 Aswathappa with a
knife, A-9 and 10 Voluntarily caused hurt to C.W.4 by
assaulting him with clubs, A-4, 7 and 10 voluntarily
caused hurt to C.W.25 Venkatamma by assaulting her
with clubs, A-3 voluntarily caused hurt to C.W.26
Bhagramma with knife on her right hand and also
caused hurt to C.W.27 Govindappa with the knife, and
K’
x?
also caused hurt to C.W.29 Gopalappa by stabbing his
stomach, and A-2 voluntarily caused hu1’tt..to-__C;W.28
Srirama, by Exploding a hand bomb, onlthe
weapons which the accused used as wefapC,na.of offence’
likely to cause death, tl1’ere’by’_’;.tlhey hayeg
con1mitted an offence puI}_isha.ble} unde_r”–sec.324=V:.irjw l’
Sec. 149 IPC.
Fifthly, accused_y’~b_eing.V’ the ‘lof an
unlawful assembly, andllliniléifosecutionlvof common
object of such i_a*s.seInxbly,VA “th’eyz’have caused grievous
hurt to Krishnappa Kyeflehappa, both sons of
Gopalappa, byas’sau.lting:’thern clubs, and cycle
‘stabbing knife, and when they
lgwere Vi;al{efn.A:to.:lV£alur Govt. Hospital, for treatment,
Krishinappa when Kenchappa was taken to
Kolai’ ._vGoy’e1*nment Hospital for further better
_treatment”,’l1«e~died, and that the accused committed
_V:tl1eir:linu1*de1′, and thereby they have committed an
it ‘v~ofl7epnc.e-plunishable under sec.302 r/W Sec.149 .
. Sixthly, A–l3 along with A2 on the aforesaid
, date, time and place, were in possession of country
bomb, and supplied the same to the house of accused,
without a valid permit or licence, illegally, and that
thereby they have committed an offence punishable
under sec.3, 4 and 5 of the Indian Explosives
Substance Act 1908.
//”l
8. The prosecution in order to prov_efi’ts–.>.ca$e,:_.has
examined 25 witnesses, got marked
also produced M0,]. to M0. The:A4de.fencc.Ao£.tlie 5′
being one of total denialrthéey h«aV_e*–got
Ex.Dl8 being portions of ‘lv’st:a’t’ement’\ After
hearing the prosecution the learned
Sessions Judge was prosecution has
failed to its v….IT.€E£~isonab1e doubt and
acquitted’ leyeiled against them. Hence
the 3’3tateVlt1.:2;’sv revision petition is filed
before. – PW} before police.
. , 9. ” §V>W.1.fisA’t.-he.’ complainant — Rani. She has stated
V’ _ Vthe..CourtVa’s”per her version in the complaint that on
5 (:4-.f’lVr:1c_fii.a:lent i.e., 15.3.95 at about 8.00 a.m., CW3O to
come to the village for measuring the house and
1andsv.AAt about 10 to 11 am, they have come near the house
“Accused No.5 – Bachappa and started measuring the
house. After completion of measuring the land of Accused
No.5, they came near the house of the complainant. CW29
Gopalappa is the grand father of PWI. When officials were
measuring the house of the complainant, the —
Venkateshappa came near the scene _.a.n_ud”VV.go’oj:ec.ted “for
measuring the house. At that time, — 7
deceased addressed Accused _No. 1 lanldtold tolwlhy he
should object for measuringlV”elfithe hous_e&l”sii1ce:’.their house
had already been No.1 that since
there is court case in he is objecting to
measure the surifey’«.ofiiciais,:fThereafter. her father
by the Accused No.1 and
asked house. At that time, there
was ‘altercjationshbetween Accused No.1 and the
deceased On seeing the altercations, the
Survey. officia1ls’vl–eft«’the scene of occurrence and left the
‘ later, the Accused No.1 came along with
*.Ac¢uséd’l–“.1’*;§’s.2 to 12 near the place and the Accused No.1 —
Venkateshappa took dagger and assaulted her father on his
2 right “shoulder. Accused No.6 — Lakshmana brought cycle
chain and assaulted her father on his back. Thereafter. her
father sustained bleeding injuries on the shoulder and fell
down. At that time, the Accused No.6 assaulted her father by
means of cycle chain on his back. ‘I’hereafter,.’_A’whieVi1,_her
uncle by name Kenchappa was standingV__n’ear’h.erl.’ fa.th4er.””_._
Accused No.3 — Dhanegowda assalulbteri ti.
stomach as a result intestine of Kenchappa.”_lha’s”comeeout
and he fell down, at that
Accused No.7 — Shekar Sumitramma
assaulted CW26 by her back. The
Accused N by knife on the
right for{:ain_:._V injuries. Soon after,
CW25” Govmdappa, cw29 –
Gopalaptza, has come to the scene of
occurrence. ‘Atl:v’thatu the Accused No.2 Nagappa
CWé5″by~means of knife on her right shoulder.
‘ ,.’l’h–e assaulted CW25 by means of club on her
“thighs.A”llhe..Accused No.3 — Dhanegowda assaulted PW29
Gopalappa by means of knife on his lower stomach and
2 iclaused bleeding injuries. The Accused No.4 –~
A”l\/lunishamappa assaulted CW29 by means of club on his two
it “legs. Accused No.10 — Lalithamma and Accused No.12 —
Munithayamma have kicked Gopalappa, her grand father on
9-
/Q
his back and thereafter, he fell down. The Accused No.3 —
Dhanegowda assaulted CW4 ~«~ Aswathappa by means of
knife and caused bleeding injuries. Accused No.8 -~ Srinivisa
assaulted CW4 — Aswathamma by means of cycle’*Vcfh.ai’n on
his back. Accused No.5 Bachappa and
Bhagyamma have assaulted CW4} by mea.nls’o’f:’clubsV’_’on ~ by
back.
9. The Accused No.2–…;”P>l,aga;l.)pa. bomb by
bitting the same by mouth throwntotzrards roadin infront of
com}i.lainan.tl’s”lhouse”and, the same is exploded and the
pieces ofithe sainellhas caused injuries to face, both eyes and
hai;1ds,of lcom:_1jlaina.nt’s uncle CW28 — Ramappa. Alter
th”e.__bomb, the Accused No.2 was trying to escape
. 1’r”orn the~«.scer1e*”of occurrence and as he ran, he fell down in a
drainage -eliannel and at that time, the bomb which was in
his pocket has also exploded and he has sustained injuries
A’ thighs. The above witness is PW} before the Court.
_.:This PWI has been thoroughly cross–examined by the
defence and it has been elicited from the mouth of PW}. that
there were Kong standing disputes between the;”d’eceas:ed;_.and
accused side.
10. PW3 — Ashwathappahiisidari ‘He is.
has also spoken regarding the incident as narrate-‘d
Similarly PW5, pws and”‘1Vs.s:i§w7 by— «”‘s£ifamappaV,
Govindappa and B’hagyarI”1rna’vs.:’:’ respectiyely’ are injured
witnesses and they the Court and
have ciearly, by the said
accused ‘
these injured eyewitnesses, the
prosecution ” PW2, PW4, PW8 and PW13.
theyltarei nottinjured, they are eyewitnesses regarding
it jthje iricidentt PW2, PW4, PW8 and PW13 have also
._ qCdaL€gVvor1E’ca_1lyt,.attributed overt–acts in respect of Accused
in the same manner as deposed by the injured
V as witnesses PW3, pws, pws and PW7.
12. So far as other witnesses are concerned who are
examined in this case, PW20 — Dr. K. Srinivasan has
examined the injured– PW6 — Govindappa and has found
\-
simple injuries on his person. He has also exa:ninv.:¥:d.. —
Venkatamma and PW3 — Ashwathappa
CW29 — Gopalappa and PW? antzliisssued ‘*
wound certificates as per E”:;s_4.P1O«”to
the injuries sustained by theseliindiuredl PW2t)
as simple injuries. it it i V
13. PWZO — conducted
PM examinatilernron as well as
Keneha Ba and lhas is’s{1’e,d’ Post Mortem examination re orts
marlged EXP} 7.
” PWZO the death of the deceased —
Krishnappal’is._V_Vhomieida1 and the death was as a result of
‘ VpVxeriphera.lA’circulatory failure due to haemorrhage as a resuit
._ of The death of deceased — Kenchappa is as
r’esu1t._”of’shock, massive haemorrhage due to injury to vital
.. organikfiidney.
15. PW21 is the PSI who has recorded the statement
of CW5 and CW29 when they were taking treatment in
Victoria Hospital, Bangalore. PW22 — Ramappa is ASI. He
has registered the case on receipt of complaint 1 at
1.00 pm. on 15.03.1995 and transmitted§l.:f..lF’IF5§[jto
jurisdictional Court. On receipt of the inforn1atio’_n thiatortel of .
the injured died, he has requested t:hte..court to”‘ad’d:”tSec:i;ion
302 IPC in the FIR which h»as…_alrealdyl?3een es’tih;hi.tfi¢c1″3thttht§th
Court. He has recorded thelstatement’ l lwitnesses and
prepared the spot mahazar .has._ the articles as per
Ex.P2. He further handed to the Inspector
ofPo1ice.
16. — Alplfl-‘*s:~:~r1_p evidence on record the
learned ‘Sessions found that the evidence adduced
by gtlie. prosecution not sufficient to hold that the accused
«.1flave the murder of Krishnappa and Kenchappa
‘V artdx all the accused of all the offences charged
a”gainsjt Hence, this appeal by the State.
Heard Sri G. Bhavani Singh, learned SPP for the
l’_llState and Sri AB. Patil, learned Senior counsel for the
Flrespondents and Shri K.S.N.Kamath, learned counsel for
Petitioner in Crl.R.P.No.61/2004. ‘
//’-
18. The learned counsel for the respondents has
filed an application U/s.39l of Cr.P.C. seeking permission to
produce additional documents and getting the same.-marked
before the Court. He has submitted that the
registered case against the prosecution witnessegs’ a
case in Crime No.11?”/1995 for offence ‘ s.
oi’ IPC for having caused injuries to_”t~he la~cc’u_sed:
produced certified copy of t1ile”‘E..I.R. and that!’
four accused namely A3, and ..A.2«.h_avei§ sustained
injuries andeproiduced”around. -certificates of these accused.
_ , Heard. Sri (3’j’l3haVani Singh, learned SPP on the
,.
filed ‘by——tne learned counsel for the respondents
C since there is no objection for marking
‘the’ said ‘diocrfirnients and admitting the material in evidence,
the application filed U/s.391 of Cr.P.C. is allowed and the
ido’e.uments namely FIR in Crime No.112/1995 and wound
Ahcertificates of A2, A8. A4 and A5 are taken on record as
evidence in this case.
20
20. Sri G.Bhavani Singh, learned SPP subinits.,_that
in this case there is clear and cogent evidencef_:su}$porte€l__byv
all the witnesses namely PW}, PW2, PW3;”PW§},. :PW5._P\§V6; ,
PW7, PW8 and PWIS who have=__ given flcllear ..picture,___o£ :_t}l1e l
incident on hand. He has=’fu_rtl1er”Astibrnitted oil”
Witnesses, PW3, PW5, PW?’ jar’e injured
eyewitnesses and Pi’)_li/V2.3. ,APW_=i«,VlA”‘PW8 and PW}.3 are
eyewitnesses to the incident. out of the said
Witnesses are lno:t”re1a.ted to other Witnesses
and this, PW3 is also injured
witness and tendered by these witnesses as
aforesaidlc2ea1*lyVgoes_ to”°show that all these accused persons
‘ _ liélle part ‘irrthe incident and have committed the acts
V persons of the deceased Krishnappa and
:clHe further submitted that FIR itself contained
an avergnent that A2 ~ Nagappa while running away from the
jsceane of occurrence fell down into drainage channel and
ifthereafter, due to explosion of bomb in his pocket, he has
suffered injuries. He submitted that under the
circumstances though it is brought out that there was age
vs
/X
21
old dispute regarding property, the incident
Therefore, the entire evidence may into
consideration for the purpose Iof ‘resp’ondents~ ‘
accused in the case. He submits the orderloi” acquittal,’
passed by the learned Session.s:tTudge it is iritaccordanee
with law and is not Under the
circumstances,’ he ‘«V3.CCused may be
convicted aI1d:««£.senter_1eed for which they
stood chad R” V. t It
2}_.– ‘i€a1″anth, learned counsel for the
complainant in’–Crl.VA’F<..]E':'.,'1'§.o4.t31/2004 submits that there is no
discrepancy '"in__VVso fafi." as assault on PW8 is concerned. He
submitted that the evidence produced by PWZO
re-_garding_ injuries on the deceased persons are caused by
cyc1e..chai1i. Therefore, under the circumstances, he submits
., that "the order of acquittal deserves to be reversed and
lb 'A.V_V'rcspondent may be convicted.
22. On the other hand, Sri A.B.Pati1 has submitted
the following points:-
ll
22
There is absolutely no explanation regarding the
injuries caused on the accused persons namely
A2, A3, A4 and A5. The prosecution is silent
regarding the manner in which the accused have
received injuries in the incident and
indicate that the eyewitnesses are§”n’o’t«..speal«fifig
truth absolutely. In View of the ~.o}d:.A_dif:f_eren<ceg
between comp1ainant""'and {the jaccuseds, he '
submitted that the ocularevidence::tcndei=ed7lby
the prosecutiongdoes not Qualify » ;
In the light of the’-abo,ve, it is_sub.”inittvedVlthat the
order passed by Atheijlowerp Court’ does-‘3 not suffer
accordingly, the appeal
ma3’fL~’eV disVmi__s’se’d..
g b He further lisubrnitted that in View of the evidence
it” ‘P’N2.2’-. “read with evidence of PW1 —
_ complainant and other evidence on record, it is
clear that there is improvement in the version of
2 it PVV1 and other eyewitnesses in general so far as
Bovert acts are concerned. He submitted that the
Injury sustained by A2 -~ Nagappa has not been
properly explained by the prosecution. He
further submitted that the complaint in Crime
No.1l2/ 2005 given by the accused person
indicates that four persons of accused side are
injured. However, in View of their custody, they
could not pursue
‘B’~report. However, he
w
//’I
23
submitted that the accused have
suffered injuries. In View of the same, it» is
argued that the prosecution come tout’ T
with clean hands. He :_furthei=._stibmittedfthat
near the scene of “*occurreI’1ee, though;
prosecution cas’e.:.g.”s,tates *-that_”‘.=Kr’i.shnappa _.
deceased has sujstained’–~heaVya ble.ed.ing injuries,
no other mentioned in the
spot mahazar case of the
prosecuti§o’n.:H’e s.ubi.:iii_tgted’f’that PW22 has mis
iead;jVit1rie*vCouI’t. byplroducing the entire material
1 o1_1V.»’_record_,Vléjriiii”overall consideration of the
this_,H”h’e submits that the evidence
12 shows that A3 and A5 has
»first– s’1″1s’tain’e.d’ injuries. Thereafter, the incident
hjasiihapipened. Therefore, the prosecution has
su}i5p1ess’ed very genesis of the incident. In this
‘..:’i2’iew of the matter, he submitted that FIR itself
indicates that there is verbal altercations before
the injuries sustained by A2 and A3. In that
view, he submitted that the order of acquittal
passed by the learned Sessions Judge does not
call for interference and the appeal may be
dismissed.
N
/X
24
23. Sri Patil, learned senior counsel in of his
submissions has relied upon the following –1-
1. Ram Narain. Jaggar ‘-others,
Vs. The State of Punjab:;’reported_yiI¥1l V
1727 — Appreciation of eviLienceA’– injuries caused”by
lethal weapons — prosecution evi.dence{_’in.c0nsistent’
with medical evidencelkand that ‘of::ba:ll1st1c expert –
accused are entitled t.o”be’a.cquitted.
2. Soundarapandi state reported in
1933;crs~51;;J. 1199»: Eviden’ce.Act (1 of 1872), Section
of ;–prosecution U/s.302 of IPC —
injuries”.a1legedly’ca,used by aruval — medical evidence
Atoutally in.corf1p1e=te_”wi’th oral testimony of eyewitness —
_ medical officer very assertive in his view that injuries
could It 1’I€{Y§’W_b€€I1 caused only by any stabbing
instiiument and not by weapon like aruval —
cannot obtained by calling some other
more cornpetent and experience expert ~– held, evidence
“of “eyewitnesses cannot be relied upon ~– accused was
. “entitled to benefit of doubt.
3. Appanna Yellawwa Madar and others Vs.
State reported in AIR 1956 —– Born 471 «– where the
eyewitnesses for the prosecution though
unsophisticated were found clever enough to make
25
improvements on the points whichgltthefiijv–._thc:-ugh
material. it is very serious infirmity “inf Kat
murder case and if such d.irec»t.4eviCIence’is’4 notvgrhollyt j
satisfactory, the subsidiary Y”-thfi
prosecution relies, viz_., the discove.rv.of ‘ the axe},
however suspicious, cannot cure ‘the’in:iZirrnr’pty.W
4. snags: n?ird hili:i:azid*.rsaraa Vs. State of
Maharashtra repotrteztiifiivx SC 1622 —
Evidencteiitiact 3 — interested
_evidenc1e;z of ~ close relative of
victim ‘t€fid.ency”ittofgeiiaggerate or add facts —
fcouit examine their evidence with great care
7.an*c1’cau’t1oVn._ 2 V’
Singh and others etc., Vs.
;p_S:tat_e oAiA’xBi–}:«ar reported in AIR 1976 SC 2263 —
_rn«u1’d:er case — non explanation of injury sustained by
it inference to be drawn.
. In a murder case, the non–exp1anation of the
.. injuries sustained by the accused at about the time of
occurrence or in the course of altercations is a very
important circumstances from which the court can
draw the following inferences:–
(1} That the prosecution has
suppressed the genesis and the origin of
r-
//5
26
occurrence and has thus not pres.e_nte’d_’the
Version;
(2) That tl’1€:’\7l’7A’l’lC1’1€-S$€’$ ‘denied if’
the presence of inju’riesf”ori the A}:-erson’l_i”oflf’the
accused are lying on theinost n1aterialV_p0ii’1t >
therefore their evidence is unrel’iab1e;fl7_
(3) . lcasffip there~–.is/Ia defence
Version ‘l._explair1s;~l injuries on the
persons of ‘rendered probable so
as to throiw dQ1lV.bt’Qrj~,t_l1eV prosecution case.
siateksi’ iiafnaigaka Vs. Siddegowda and
I’*o£herg;iv:;e§£g:%te_§1~iii IL1§”i999 KAR 3373 M criminal
:trial?– in ‘1nfu.rderhlcase__– severe injuries were found on
three accuseaci} the-.prosecutior1 witnesses suppressing
. this fac_t –‘~effect — held ~– unexplained severe injuries
this caso~——ori Vital part) on the person of accused
_Woul.d”indicate that the genesis of the case has been
suppres-s.e’d.
“V it 7. Rajendra Prasad Vs. State of Bihar
reported in 1977 Crl.L.J. 613 — When the trial Court.
with full View of witnesses acquits an accused after
disbelieving direct testimony, it will be essential for the
High Court in an appeal against acquittal, to clearly
indicate firm and weighty grounds, from the record, for
discarding the reasons of trial Court in order to be able
c»
/2
to reach a contrary conclusion of guilt ofWthelp’a–c’c.us«ed.
The High Court should be able to point
judgment that the trial Court’s reasons:~are.:palpablyD’V.
and unerringly shaky and fits. -.reas.onsh are ‘
demonstrably cogent as a rule .VoI’~appre:c’iation
of evidence, in an appeal agaisnt VacfC;_uitta«l….yIt–*is not
legally sufficient that just possible for the High
Court to take contrarytvietvlablout creldilbility witnesses
but it is absolutely the High Court
convincingly Well irnpossible for the trial
Court ;to ifeiect fl’1€i=i1′ testi’rn:on’y=. . .
llll ” :7’f’*’iari’?3ll’NaI£l.l.ill’Vitji and others Vs. State of
‘=._Gujai-at” i-«§p.§rtgai.::r1—-_A’iR 1970 so 219 —
.{A) ‘Crirninai–_PLC(1898], sec.-<l23– Appreciation of
. , evidlencle appellate court – evidence of prosecution
j2vi'tness 'truth and falsehood not separable — entire
_ evidence has to be rejected — decision of Gujarat High
1 ~ Court – . reversed.
. {l3} Penal Code (1860), Sections 149 and 34 and
if , and 304 — free fight between two groups of
persons — injuries sustained by persons of both groups
in course of such fight — death of two persons — only
persons found to have inflicted injuries can be
convicted for the injuries caused by them.
Where there was melee at the time of the
incident and two groups indulged in a free fight
28
resulting in injuries to persons of both:V~’groups’.I’alnd
death of two, if the court comes to the
the injuries sustained by _the.__perslons”*vvere’ in the
course of a free fight, then only.-those
proved to have caused. injuries or death can be lhelnrp
guilty for the offence individually ll
7. As Inentionedli’e.ar’lier boti1.:the_t;rial Court
and High Court have c–om§pA1Vete_iy_irejected the testimony
of PW6. Hence the -Ipros’ecutionV”case’_j.entire1y rests on
the testimony believed by the
in irngjortantlllrespects. It came to
the lconiclusiolne “not truthful witness. It
V.rdp’i1redii:thatf:.;his”«versionhlasto the incident is grabled
lone ‘suppressed the part played by
hirnplland ‘others side. But yet the High Court
— , evidently inhfluenced by the fact that two persons had
been killed vd1..1ring the incident undertook a salvaging
_operat’i~–on in an attempt to fish out truth out of the
if .o-faialse evidence given by him. In doing so, it
Went, ‘in search of some corroborative evidence.
it , According to PW5, after the occurrence, he ran to the
house of Kasalsingh, PWIO and informed him about
the occurrence. The High Court thought that to the
extent the evidence of PW5 tallies with the information
given by him to Kasalsingh the same may be accepted
as true. But yet the High Court in many respects
disbelieved the testimony of PW5 even it accorded with
F”
29
the version given by him to PW10. It
conclusion that PW5 did not give a fu’ll..:and. it
version of PWIO. In particuilanyit that.’_:whi1e
informing Kasalsingh about incidentfi F*’i’fv_”
deliberately suppressed the partllplayediéy péprsonsdii *’
on his side. Having comehto the c.onc.l.u_sioi2, that right
from the beginning a”di.storted version
of the incident, not right in holding
that any portion of .can be relied upon
merely because his testimony in
the version’ by him to PW10.
It is truieflthatl’ thelcourts have to separate
ytthe ‘truth where the two are so
V:interrriing1ed..p:lasfil’to:VV”make it impossible to separate
them,»the’v.evicl’ence_has to be rejected in its entirety.
..,The ‘u’Higl1~.vCou1’ttw.over looked this well accepted
p_ri11ciple.V’Ifwe« ‘reject the evidence of PW5, as we think
.we_sho–u_ld, the prosecution case must be held to be
unstibstvantiated because there is no other evidence to
it. Whatever other evidence was there, it has
it .. been rejected by the trial Court as well as by the High
Court as false. In this view, it is not necessary to go
into the question whether Kasalsingh’s evidence comes
within the scope of Section 157 of the Evidence Act.
V’
30
9. Akojam Ranbir singh_;V~~~~-vs.
Government of Manipur reported V’
2191- ,8–_ c M .q __ fl
(A) Criminal P.C. (1898),-~As.éctia;1-4’23’:l[flapp;a1
against acquittal —- finding of acquittal on ‘proper -‘
appreciation of evidence.f5″hqigh co1irt«jks:’:1olt:vjustilt”ied
interfering with finding…cifimi11.a1 appea,1″ca.se No.2 of
1968, D/- 11~3–A–1._9f71 Reversed.
Whether the of by the Sessions
Judge ‘phased “appreciation of the
evidence =t:he is not justified in
setting–i:_it;.’_ aside._V’l’aipid convicting the accused even
V’tho’ughif,twoffdifferent conclusions are possible on the
basis of ‘t1fie.g4ltma’terial on record and the evidence is
sufficient”i– to} create some suspicion about the
comp’liC:ityV..of accused in the crime. Criminal
Appeal Case——110.2 of 1968, o/- 11~3~«1971 [Manipur),
_Revers’ec_1.
Swaran Singh and others Vs. State of
i.==urij§ibV reported in AIR 1976 so 2304 »
(A) Criminal PC. (1898), Section 423 W Appeal
against acquittal —- Finding of fact — Interference with —
Perrnissibility.
The law only requires that the Appellate Court,
in reversing the order of acquittal, should be slow and
circumspect to disturb a finding of fact, but if it is of
,.
31
the opinion that the finding of fact is W_rj’o’ngf
borne out by the evidence there is no limitation” on V’
power to interfere with the order’ of 974x ‘
SC 606, Rel. On.
Held that the view taken byV”Add;:ti¢5n¢urg
Sessions Judge was p’erve_rse and against the
weight of the evidence le.dlllbj,I_t’l1e prosecution, and that
the High Court entire evidence,
has given due regard tloltllie of slowness in
disturbing ..a and after having
considereddthe~.sanle_:.ha.sl the conclusion that
no otherviewvrasptissible on the evidence.
‘.vv24.__ . Al3cfor_e”‘a.pp«re’ci.ation of the evidence in this case,
the following plointslare rnind:-
‘V 1″; .__l'”ln C’ an appeal against acquittal, the
Lfixppellate W Court would be slow in reversing the
of the trial Court unless miscarriage of
r thereby ensued.
The Appellate Court would not interfere
” the order of acquittal even if based on the
evidence on record two views are possible and the view
taken by the trial Court is equally plausible.
3. If the Appellate Court finds that the
appreciation of evidence by the trail court is Without
evidence or capricious or against the interest of
32
justice, then only the appellate Court woux1g_.l.o
reverse the order of acquittal.
4. If after reappreciation of’the«.evidenc–e, the’
Appellate Court independently_:pf1r1ds of
acquittal is not in accordaancepxwith’ law
conclusion arrived at “the trial VCourrt.Va19e”not ‘based. ‘
on correct appreciation oi’=«the_evicl’ei1cel on record, and
the incident carihat be? the guilt
of the accused isa..tiotall’virrinconisistent with the
innocence. of cases only the
Appellate’Alflourfwduld order of acquittal.
Having se’ttljedV”‘principples of law in mind, we
V’\Xrou1d.Vl£ke reconsider thevevidence on record.
‘ PW’1f’j–»”the complainant. The incident had
happenedabctweenlllll” l2 p.rn. on 15.03.1995 and the
corriplvainant haspreaclied the Malur Police Station at about
.A distance between the police station and the
~court krns. When we see the contents of the FIR it
is lseenii that the complainant —- PWI has named all the
‘persons i.e., A1 to A12 in complaint and also attributed
“I.sp’e’cific overt acts against the accused. The said FIR has
it ” “been registered at about 1.30 p.m. by the police and
dispatched the same at 2.15 pm. and the learned Magistrate
33
has received the same at about 2.30 pm. Havingjiiegacrdavpéto
these facts, we are of the firm opinion
absolutely no delay in registering; the4coniplaintj;v»blefore
police station by the complainant-,and’ialso’»trans;niss’ionVof
FIR to the Court. The ver::’io’n__ of in f’E§ll{.:._’specilically<I'
mentions the presence of lethal weapfolns. band? also the
presence of explosive Vsublstaificesy hands of the A2. It is
also specifically.averre_dw–in the that while running
away from Hthe f3'Ce_11e"0f1Off€Il(fE;.Vfllelméfiplosivfi substances
found~in"the;possessioli1.ofA2feXp1oded as he fell down to the
drain and The evidence of all the injured
witnesseslnamely PW6 and PW?' also specifically
states _povert"'acts..by each of the accused. It is also seen
' PW8 and PWl3 are also eyewitnesses to the
'1i1ci*dentL f«.1"ij'hle_9a1'Vevidence tendered by the injured witnesses
cannotvlbehlightly brushed aside.
26. At this stage, we would like to note that no
_Vv_Mwh€re in the prosecution evidence, it has been brought out
that any of the injured witnesses were armed with any
weapons at the time of the offence. On the other hand the
2-
34
possession of weapons of various description inc3uding__’DLa1_{u.
chaku, sticks and cycle chains etc., have ..beer..1_ speciiicaiiywp
mentioned by at} the witnesses. Unde_rH’thVe”s_e ‘circ_uir1stanc_es,
we are of the firm opinion that the persons in the” op
have taken part in the inciden’t*o:n~the date of thefloffence and
have caused death o’i’~~..two_«”hperhssoiis’hand injtiries on four
persons.
27. regard nhature of the injuries and
the opinihn has conducted the PM
exaniivnaticriivep iof’thevv..opinion that the death of deceased
Krishnappa and is homicidai in nature.
Therefore, tWe..haVe’ no hesitation to the come to the
“that the death of both the persons and aiso the
p PW5, PW6 and PW? are the direct result of
the acts the accused and hence, they are liable for the
.A said offences.
28. So far as the non–exp1anation of the injuries
.:%caused on the accused is concerned, the FIR itself speaks of
injury on Accused No.2 — Nagappa. So far as the other
t~
//’g
35
injuries on other persons is concerned, the police..hf:1ve’fi1ed a
‘B’–report, which has not been persued by it
hence the Magistrate has accepted the saIne,:’l*IenVce;” the
accused cannot now urge the said Contention this stage in.’
this appeal. Even 0therWjSe”–.’.,fii8, alleged’ other
accused could be due top_bI11shin*g.:’of vwsaponsvvof the accused
themselves inter se i and jnot erode the
trustworthiness _the§;’prosecution’_witnesses.
29. 1 far offences committed by
the is mentioned in the FIR by PW}
that immediateiyafter buwey Officers left the scene of
occ:tiI’1’ence,d accused had verbal quarrel with the
ffrishnappa. Despite the fact that the accused were
vveapons and the deceased party was un–armed,
in’~view°of quarrel with regard to the property and also in
view of the fact that there were age old enmity between the
it ‘A._a’ccused persons and the deceased and their family
xlmembers; the offence committed by A1 and A3 cannot be
said to be done with an intention to caused death of the
deceased. Under the circumstances, though no motive can
//”T
36
be attributed to the accused persons, the very natrl.ire_’__of’ the
weapons used by A1 and A3 and also
explosive used by the A2, it couldjbe fivglli tliat
had the knowledge that the;a_ct would be ca}-.isin’gd’deijith~ of
Krishnappa and Kenchappa. these.circ-“umstances, We
are of the opinion thatijjthpe the accused
would fall U/s.3o4 Partal’-loll the offence of
causing injuries, PW7. However,
though thiereufs use of explosives by A2,
the charge sheet against A1 to A12
underlKthe.l_ Substances Act. Hence, they
cannot beheld ,gui1ty_tlof~.–the said offences. It is noticed that
th’e’3″¢.charge ufide1–~..s~.«e Indian Explosive Substances Act is
‘ .ro[ad.e””against A13 and A14. A14 is absconding and is
.’n.ot’befor’ef Court in this case. Hence, we are inclined to
grant the benefit of doubt to A13, since, his name does not
1’ lflf ifigure in the complaint lodged by PW1.
30. In the circumstances, we are of the opinion that
A the appeal filed by the State deserves to be allowed.
Accordingly, A1 to A4 and A6 to A8, A10 to A12
h-
37
{Respondents Nos.1 to 10] are convicted for the”-.o;ffe’nce
punishable U/s.304 Part–I r/w sec. 149
convicted for the offence U/s.324v;*/”w.—-Secf:14tQll ‘ if
the facts and circumstances of the casefwhere’ two lixfes are
lost in the incident, we areof the opinion _that l’t3ie”’sentenceV ‘
of seven years of rigorous pAi.mp1Z”i«sonment”would meet the
ends of justice for r/w Sec.149 of
IPC. So far as” VoffencVe”‘U::/:ViSec.149 of IPC is
conce:med,«–Vwe 2Li_r_e;’.o’f th_&e” opiniojii that the sentence of one
yearpvrigo1’o1i:s irn:prisoi1ernentf’Wit’hV’ fine of Rs.5,000/– would
meett’hele_nds_ of the following
‘ ” ” ‘ – ORDER
” The appeialvlis allowed in part. The Respondents No.1
if . A6 to A8, A10 to A12 before the trial Court} are
fo’rv.*:the offence punishable U/s.304 Part-I r/W
Se-c.1./$9’ lPC and sentenced to suffer RE. for a period of
.. sevengfears each.
Further they are sentenced to suffer R1. for a period of
one year and pay fine of Rs.5000/–. in default to suffer SI.
5
//5′
38
for a period of three months for the offence punishable
U/5.324 r/W Sec.149 of IPC. Both the sentence_s:es£1–a1E;.e’run
concurrently.
The respondents are directedm to su’rrend_er’._’oef’ore the
trial court and serve the sentenceflas”–herein’before or_iiered_.V
in the event of their failure so,” it ‘that the
trial court shafi execute the_Thefibai£ bonds of the
respondents stand canceiiecii e. _ V
v.»’q”Eie~gr;”1erkt§f”‘aeqtfittaiAo’f”Respondent No.11 {Accused
No.19;”bei7ore theijtrial’ is gtonfirmed.
. sa/-.
Judge
Sd/’
Judge
V ” .. NM/Gps*