-1- IN THE HIGH CGURT OF KARNATAKA AT BANGALQRE DA?ED THIS THE 26"':mx 09 MARCR 29oef¢ 3 P R E S E N T THE HON'BLE MR.JUSTICQMV,G.SEBHR§iT V = THE HON'BLE MRS:Q@$TiCfi B §VmAGARATHNA cR:M:gAL A9EEAL"N§§i41%k2oo: BETWEEN .-r-.-r.---....--_-...-. 8TATE REERESENTEE_§1TV ULSOOR'POLZCE_STETIQN"r" *L'% ' a~p'= ...APPELLANT _V (BY,$RI=MAQB0eL AHMED, HCGP} ~ -...'u..»-cum ,_ B$L§KRISHN§ S/O 90THRAJ V. AGED 33 YEARS -~,"NO.4,"§G" l5"'STREET *,Jo§u4PALyA, ULSOOR '"-.'QA3saLoRE--8 ...RESPON9ENT T§ "rBY sax K L SRINIVAS, AMICUS CURIAE V/O DT. 5.2.2008) -10.. Amicus Curiae to present_ the CaSe*@of°.the_V respondent ~accused No.l[g by" order raatgai
5.2.2008.
4. Having regard 1&0 “the _contentions
urged, the r’9ointe”‘ftha§._ arise for our
determinatien5§re:efl!Iu 5 {v .
1. 3Whether%.th§a’finding of the trial
“”” H Ce@rt”§ teat” the” prosecution has
‘£a11¢&ft§.§r§ve the guilt of accused
LNe;1.j;r¢r”* having committed the
Voffenees” punishable under Sections
tmDe§éfi;t 427, 324 and 307 r/w’ Sec. 34
. f C is justified or calls for
interference in this appeal?
fl~.g_2§”. What order?
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?. P.W.lO is the complainantgl He 5ha5f’
deposed in his examination5ih=chief the£_§;W.2g
is his brother. P.W.3 is his fi;Aot’her”.eI’sd
is the son of his uncle; allt o£”,thefi” are V
living together in Jogupelye st filsoor; the
accused persons are hhoen to himcand the house
of accfised NoEl_is heer fig eheir house. He
has deposed ,the§ ‘o$e73f5,l99? Wat about 9.30
p.m.,,wheh he was eieeping inside the house,
accused_’Nos;i ‘end i?” came to their house
holding choppers} P,fis.2 and 3 and his father
.g were also in the house; the accused persons
V7 abused him in_filthy language asking as to why
he had ebused their younger sister; accused
‘VNo.lueseaolted on his head with chopper twice;’
‘ilja¢cu$ed”No.2 assaulted on his left palm with
ofichopoer and both the accused assaulted on his
“ddlegs with chopper. He has further’ deposed
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‘ he intervened, accused No.1 assaulted him with “»
chopper and he sustained ihjuey on his rightg
little finger; accused ho;2 assaulted ah his
left leg with chopeer; accused ho;i assaulted
C.W.4 with choppet en the head}.accused No.1
assaulted on the fleet Of his eother with the
hind pottiohiioffl the léhohheti there was
electtiqityriight is eheit house at the time
of the incident ahd after assaulting them, the
accused ~ee;ec§é[ tea fiaway. He has further
depesed.thata§X.P;l is the mahazar in respect
V_ of the scene of offence and police seized the
hchoppet {toe the spot and M.0.2 is the chopper
whichteas in the hands of accused No.1 which
i7 was lying at the spot and seized under Ex.P.l.
“It is elicited in his crosswexamination that
Vh”he does not remember the type of clothes
accused No.1 was wearing at the time of
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that en the date of incident, at about 9 gan;,mn
accused Nos.1 and 2 came to their h¢use}.at ».°
that time, c.w.1 {P.W.10) :=_was..rLta’1::;L’%ag’—-.
P.W.2 was also taking meais; soon after coming
to their house, without taifiingianfthind, both
the accused persons {;aaagifi§a_ C.§.i with
chopper; first accused.fio;gt§%$%eited’on the
face Of &»W:£:K§{W:iCi{ when she intervened,
accused fioiisaeeauited on her leg with a crow
bar; accgsed’wo;éafi¢§$aif had brought the crow
bar; she could net nake out whether P.W.2 was
°a;ae assaulted he the accused or not; C.W.4
dwas_aiso present at the time of incident; he
was also assaulted on the hind portion of his
.”xThead;h»but she cannot say which accused
d.dasean1ted him; after assaulting, the accused
.i*Hpersons ran away; she cannot identify the
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was not present at that time; the_re’fo.re:;i.:”
did not witness that incide;nt;_AA4e:;c«ep1t’accuseg;i_
Nos.II. and 2, nobody e}.swe_’ ca1fie ‘”co houeési
at the time of inc:ic;ient;”V”i’i:;:oon to
the house, without._ the
accused persons both the
accused on the head
and faces .’.;;,>;s’s§t;2ljil.ted P.W.4 from
the chopper; several
;::ersons”«IhacVi «but, they were at a.
distance; egssésulting C.W.l and 9.w.4,
“”‘the”W”a<;,Cus–ed persons went away; there was
iigiijzt inside the house so also
outs4'ic3eV..§;ah;ci'iV. the police came to their house
ii."'~'«.___V'e1urin<jflihe night of the incident. She has
the suggestion that they have foisted a
false case against the accused persons
Ifthinkihg that they may give complaint with
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regard to assault. on the _sieter;hef"§3eeueedgxh
No.1. She has also denied the euggéstieh thafc
accused No.1 did not aeeault anybody age that
she has given falee evadehce to euepeft her
son c.w.1 (e.w.1@)aVh".i '. .
10. e.W,4hgNa§aé1§h§.gaahae§eaed in his
examinatiene;h;ehié£ that he ea residing in a
different_Teett§onLhetaflthe house in the
occepaiish at §}hs;igE,2 and 3; on 3.6.1997 at
about 9.3Qhp,fi.,7wheh he was sleeping in his
.«ahouee, he heard §0me galata in the house of
VH1C{W;;;,uwheh*_he went there, he saw accused
$oe;1 aha Zein that house; both the accused
‘gpereehehafiere assaulting C.W.1 with chopper;
uh’geach_of them were holding a chopper; accused
Wfhqlih assaulted on the head of C.W.l and
uviaecused No.2 assaulted on the face of C.W.l;
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accused No.2 also assaulted on the left pelmu ‘
of C.W.l with chopper; accused Ne.2.essaultedf
on leg of P.W.Z with. choppef;: accused »Ne.2
kicked 9.W.3 with legs and eccused Noll_§uehed
her; when he vihtezfehed;iERaccused No.1
assaulted on his head”eith,hihd eottion of the
chopper; the ehoepe;Lefi.§[Q eae in the hands
of accused soil; accused So:2 did not assault
hin1 ahd uaiterflessaeltifig, both the accused
persons tan aweylzlt is elicited in his cross«
._ examination that he saw accused Nos.l and 2
d{_geing to the house of C.W.1. However, he again
states that he did not see it. It is further
— elicited that by the time he went to the house
d”k3of*C,Wil, the accused persons had not come out
Wgof the house; when he went inside the house,
“shhe saw accused No.2 assaulting C.W.l out;
C.W.l was inside the room; soon thereafter,
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C.W.i came out of the room; seeing théfgcousedgul
petsons holding chopper, he’ sent out” oi fthéj
house and came to thVe”‘~….V’roa€i;V:’ A”«:s’C–<:1.1sed
persons also ran afiter his} fitst acoasea No.2
assaulted on the head of Qifiiii aocused No.1
assaulted on "the ifaced of jQ;hiii7 ehen C.W.l
tried to oatoh hold oi ohoofiet in the hands of
accused floili he agstained injury on the left
palm; sthe oeoole of entire locality numbering
about 30 were witnessing the incident from a
'_ distance and soon after assaulting C.W.l, the
da_aooused. persons ran away. It is further
,eiicitéd ein "his oross«examination that the
V. knife veas" seized during the previous night
"* Hitself and therefore, nothing was seized at
l}the" time of mahazar. He has denied the
ai"soggestion that a false complaint has been
V given against the accused persons thinking
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that the sister of accused _No,l “m§¥ ,file u’
complaint regarding the qfiarrel; betw§e5’it¢a;
sister Qf accused No.1 aha C;W£1.afi$ that he
is deposing’ falsely” to _sfippe;t C;Wg;,J§P.WL2
and P.W.3 whe are reigned to him;;
11. P.W.5 *ShiVappa,,aeee;dihg to the
prosecutionr’is an eyesitaéas, fie has deposed
in his e2amQhation¢ih§Chie§ that on 3.6.1997
at ahbst*x§y30§’pQm;; he” had gone to the
workshim> near? the nhease of C.W.l as he had
left his autc there {hr repair; he saw accused
»u.Nos@i’;fihda 2 Kgoing to the house of C.W.l,
tIfiuafrei1iag¥there and coming out of the house;
c;w;1 hafiasfistained injury and he had become
‘rgnconseious; P.W.3 had sustained bleeding
jgnjfiry; P.W}4 had also sustained injury;
V”-fihaecused Nos.l and 2 had assaulted C.W.l with
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chopper; he saw’ a chopper in the _hehdsflof_o
accused No.2; there is a passage in irofit oi v
the house of C.W.l and C.Wll was aséguitesllgf
the passage. He .canhotfiesayz shat assaulted
P.Ws.3 and 4. At this,steqe} this witness was
treated as hostile ehd he see oerfiitted to be
cross–exemihe&; It flkeielieited i11 his cross-
examihstionrhfiflthe’learheq Public Prosecutor
that he dis hot notice’the incident that took
place it is not true to
suggesta thatch he saw’ both the accused
He. s3seulting7P.W.4 with chopper; it is not true
itohSUq§eet’thet he saw accused No.1 assaulting
V. P.W}2 eith chopper: he has not before police
hht’,ee per Ex.P.2; it is not true to suggest that
:j_helhsd witnessed the incident that took place
‘h”ihside the house of C.W.l and that he has
deposed falsely. It is elicited in his cross»
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examination. by ‘the learned counsel ffctgtthehv
accused that he saw the accused and”
the injured when they came out cfgtheahousefd
It is clear from the evidence of e;w{5 that he
has not witnessed the ihcident and he has only
seen the accused and the injetedxeching out of
the house;~hisieyidence is hot helpful to the
case oi the pfesecetion eo_erove the guilt of
accused Neath 3% he Isawt the chopper in the
hands of accesed $0-? and as he has not spoken
_ about the assamlt on other witnesses.
haxi2.hdftP;Wi6 mMuralidharan is also an
.eyewitness according to the prosecution. His
éuddhevidence is not helpful to prove the guilt of
f;a¢¢eséd No.1 as he has stated in his
“duéxamination«in–chief that. accused bkx}. tried
“to assault on the head of C.W.1 with a chopper
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and that he did not notice whethet §ffi;§”nadfidV
sustained injuries or not. gTnis witness~§sse
treated as hostile and _nothing_ hae”~been
elicited 311 his c;oss~exafiinat;on flit support
of the case of the p$¢seggtg§5T?5g¢ he saw the
accused No.1 @asseultflho,fltne. injured and
thereforeflvtheiefiidenoe otefitfitd is also not
helpful tq*:§eEg;¢sg§sti§a to prove the guilt
of accused’ No’.»1f-.._f
.f}3;~ P.W;j:isla witness to the mahazar –
ea_Ex;Etlgoe–fiowever, he has not supported the
ease of the ptoseeution and was permitted to
V .be crosseefiamined by the Public Prosecutor and
“nothing” has been elicited in his cross-
t;examination to supeort the case of the
-dugrosecution.
kfifi
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14. P.W.8 —Venkatesh is a
mahazar -Ex.P.4 regarding reooyery of fi;¢}3 one ‘
the basis of the voluntary statefiefit*givéfizP§g
accused No.1. This ‘fiitpeeea has qel§0_ not
supported the case of the egoeeoetioe efid was
treated as hostile _aed§’fioteihg’ has been
elicited 3}} his ctosefexeeioetioe ix: support
the case ofithewnpz=o£~3et:1,1ti_or1–.Vi
L5. iP}W.9 is the mefiioal officer who has
examined_P.Ws-iC;a3Q 2 and issued certificates
Ex.P¢5,u 6uuahd*o7.e ificcording to him, P.W.10
fisustaified”z3 injeries and injury No.3 was
1grieVoue.ififnature and P.Ws.4 and 2 sustained
simple »ifi§uries. P.W.9 has further deposed
i”2 that the injury noted in Ex.P.5 can be caused
“*j%yw_ehoppers like M.Os.2 and 3, injuries
R”vumefitioned in Ex.P.6 can. be caused by” blunt
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inwchief that accused assaulted his fifist’andflVV
when his mother intervened,Vshe”wasasssauite&e
and he became unconscic§;:$.4,.¢_thefeeftueti
not know as 1×3 what hapeenei thereafter and
had gained consciofisness is the hospital. It
is averred in the gemp:§i§t;£t%§§¢5§ P.W.lO as
per Ex.P.§”thetjsCcased:$ofi first assaulted
his mothet she theseeftet, essaulted him and
therefore; the faefis spoken to by P.W.lG in
his examinatiohrtinrchief is contrary to the
_.aver§ent made in his complaint. Further, he
V_has clearly admitted in his cross–examination
that, he xbecame unconscious after he was
sassatitedthy the accused. Therefore, it is
h”‘}clea; vthat he could. not have witnessed ‘the
. incident further and could not have seen the
“o accused assaulting P.Ws.2, 3 and 4. However,
: the evidence of P.Ws.2, 3 and 4 is otherwise.
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matter, though the seized choppers”we:eVsenti
for chemical examination;_ ;no3 1:eportV}_is~A
produced to Show as to’ehether there gaze ah§
bloodstains on the chopoet¥– _Ffi::5§r, it is
also clear from.vthe.Afia§¥%u%%iipited ‘in the
cross–examination of”§§Wil that %{W}2 narrated
the statamehf; he did not go
through _fix,%e§;l Thetefoteag having regard to
the above isaidWfiaterial on records and the
inconsistencies in the evidence of P.Ws.lO, 2,
3 afidvé and the facts elicited in the crossw
A\_aexaoihation_of P.W.2 that he was not assaulted
hey accased{No.l and also the facts spoken to
by P.W;3*in her examination~in–chief that she
*7 was assaulted by accused No.2 against whom,
3
lthe case is split up and, it is clear that the
l””§rosecution has not been. able to prove the
guilt of accused No.1 beyond reasonable doubt.
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The assistance renderéd :by* the ~ieéfifiefi?
counsel who is appointéd as Pmdcus1Cu:iae–is
placed onT record _and hi$* fag is _fixéd at
Rs.5,000/~.
