IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 20'" DAY OF AUGUST 2010 BEFORE THE HON'BLE MR.JUS'I'ICE N. ANANIZ)_A"- I A' CRIMINAL APPEAL No. 1343/2093» V O" BETWEEN: 1. Yaiakaiah, S / ofiangaiah. 32 Years, Vokkaiigaru, Working at Hun' Machine. 2. Prasaxma, S /o.Narasimhajah, 25 Years, Vokkaligaru, V V Student. 3. :'*__:_ ., S/0v.Rang2tpf§i_a. ' < .4 40 Years; Voki&a1_iAg'a;"u~,.t_ .. ' A§I'iCu.1turist; _ * " 4.. Ramannéi; V _ S]0.Gangai9.h._V V -3.42' Yearst, Vokkafiigaru, , ' .AgriCu}tufist. _ 'AJLX3&5?"Rt/uAV.ONethenaha11i, A L/iagadj"I'a_J1ik. Bangaio-re' Rural District. ...AppeIIan.ts A R A A' ' ---- [By _Sri.G."Suresh, Advocate) AND: The State of Karnataka By Magadi Police, Bangalore Rural District. . . .Respon - ., (By Sri.P.Karunakar, HCGP} This appeal is filed under Sf;'Cfibl'i'37'lr if the judgment dated 22.07.2003 Zpassleid' by»._t'he" 11' :2%cl€il.;_: District & Sessions Judge,' -Bangalpolre Bangalore, in s.c.No.20'1-1:19.99, .cont_?i=ctingH the appellants/ accused No. 3 p to 4 for offences punivshabile under sections 341, 323, 324 and sentencing them to undergo VS.I. forVV_av'3'perio_Vcl for an offence punishable section I'P(f:; sentencing them to undergo_.Sc'iv.ufor..'_r--1perfioclp of" six months for an offence punishable 1inderasis:ctionp'3i23fr'/'W34 IPC. sentencing them to undergo' of two years for an offence punishable éunclerl r/w 34 IPC and further sentencing toipayfi affine of RS500/- each for an offence punishalpilewvpundei' se_c_ti0n 504 r/w 34 IPC, in default to pay ',Afi'n.e,' theyftshaii undergo S.I. for a further period of one month A all sentences to run concurrently. This appeal coming on for final hearing this day, the V Court "cielivered the following: JUDGMENT
The appellants arrayed as accused 1 to 4
referred to as ‘accused 1 to 4′) in S.C.No.291/
file of H Addl. District & Sessions “Judge, Rural};
District at Bangalore, were tried lV1″or’–oi5fences.,p pi.111isi1:able’e._
under sections 341, 323, 324–,.j5-94, 3″o7__ r/we-.34.l;v’:Pe.”:The ” i
learned Sessions Judgepacqui *teVd”paccused it for an
offence punishable it 34» IPC and
convicted then; sections 341,
323, 324 3;. 3c3;.:_El%C.,_Thereloreilflaccused 1 to 4 are
before vthiis preferred any appeal
againstiiccluittalieof:._1’to 4 for an offence punishable
under section 307- 1_-/vlr’ szigitplc.
pende’ncy of the appeal, accused 1 & 4 died.
as it relates to accused 1 & 4 stands
abated. 2 & 3 are the surviving accused.
3. lvliave heard Sri G.Suresh, learned counsel for accused
and Sri Karunakar, learned HCGP for State.
We Judas?”
4. In brief, the case of prosecution is as follows:-
On 23.10.1998 at 11 p.m., near Magadi
Hospital, on the road between Government _
Magadi Police Station, accused 1 to 4 in*”furt:heranceV
common intention picked up Zia 5-;L1.a}rrelL. 1 if
Balakrishna and wrongfu11y»’restrained’ himf’ “fl
assaulted and fisted PW3 c_omrni’t–*:ed’v’: offence
punishable under in tiieucourse of
same transactioni accuAseV~:1:’_ANVof..v:’:2i édggjufies on neck
and right thigii biade.”an.d::thereby committed
an offence 324 r/W 34 IPC. In the
coursegodf 2 & 3 insulted PW3 by
using abnlsiive inagane”, “sule Inagane” and
committed an offenveetpunishable under section 504 r/w 34»
.. “””
Win».
.3, of prosecution that there was previous
enxfiity ‘.rjetv.re’en PW3-Baiakrishna and accused 1 to 4. At the
J’r.e1eVante–*time, PW3 was residing in Magadi. At the time of
‘occurrence, PW3 has visited Magadi Police Station to lodge a
{\>. -/§.»».1.9»»w€\;.
complaint on behalf of one Nagaraja. At the time of
occurrence. PW3 along with PW2-Mudalagiriyaiah.'””PW4~
Balakrishna s/o. Rarnanna and PW5–Jayara1n”Kiiere
returning from police station. When they were
the road in front of police station.jacct1’sed to {confronted
them. Accused No.3 held collar ‘acci.1sed–:i<.'.o.2._g
wielded a shaving blade onVhi.s"'*tlriroat and and" O
caused injuries to PW3.zand ii(asVV'i:nmediavtely»vshifted to
Magadi General Hospital. _7Ehes._1:}iIolice:"\risite'd.VMagadi General
Hospital. On V the._folloiiiiingiliday««.:PWll-~V{.lll'§ll.Malali examined
PW3 in Mag-ac1T1__éefi_er'al:_Hospital..fE'W8;ll§r.Usrnan Khan had
examined" The Investigating Officer
seizedvlcbla-de .-'of occurrence and recorded
statements" witnesses': The Investigating Officer seized
blooldsitained clothesof PW3. The Investigating Officer after
iiiyestigation, filed chargesheet.
I.11Hvie'W of acquittal of accused 1 to 4 for an offence
iminishable under section 307 IPC and death of accused No.1
O the points that would arise for determination are:–
J
8
(1) Whether the prosecution has proved on
23.10.1998 at 11 p.m., on the road
between Government Hospital and Police»-.___
Station at Magadi, accused 2 8: 3 shared:
common intention and in
the same accused No.3 held and
accused No.2 wielded abeladep on «.
and right thigh of Pwsgéandiaaisoainsiii-ted’if–..__ 7
PW3 by using abuse words””»bo1i magane” ” .
“sule magane” andpi’-..Cpmrnitted.VVAgffen:ee’s” S
punishable _under seetions_,_341,’ 3«23_i
504 r/w 34 :1-:¢~:> L’ ‘
(2) Whether the””1eatf13eVd:’.Jt.1dge has
appreciated . ….evidence on
‘reco_rd?7fV ‘ t”
‘{3} ‘Whe”the1~d:.’tbe”irnptigned judgment calls for
“in te1*fer§;:nc-:3? ‘ ”
15:4.) “What c5ft:é1%i»”
“/J adtrerting to appreciation of evidence, it is
-V necessary state that there was pre~existing enmity
V’ Vbctwaeentttaccused and PW3. The occurrence is alleged to have
Iv. $.~»(»x~«J%
taken place in front of Magadi Police Station. The first
information as per Ex.P.2 is stated to have been lodgedpat
11.45 p.m. on 23.10.1998. As per the endorsement”rnad.e p
Ex.P.2, Crime No.266/98 was registere_di–«.i;o:r.VVvofienees”
punishable under sections 341, 323,
IPC at 11.45 p.1’n. on 23V.io.199s.._’diiowey.e;+,.._’p’tr£e
information report marked as whieh. on
the basis of Ex.P.2 ‘iurisdietional
Magistrate at 4 p.m.. on has
not offered anpydreasons ‘«t”x’i.e_._investigating Oflicer
had retained.’ lt’h3e~..I’,o1ice station for two
days, reasonaiole doubt as to Whether
the EX.P.2 was recorded and
registered at*i ‘p.rri_. on”u23.10.1998.
the contents of wound certificate marked as
‘viré_~..fir;~d’viiiat the injured was examined by the Senior
Med’iea1.–__’Offie’er/Specialist, Magadi at 8 a.rn. on 24.10.1998.
per the evidence of PW3 (injured), injuries were profusely
‘blleedling and clothes were stained with blood. PW3 has
N l gets/we
5340 of 24.02.1999 as per report incomplete linear
fracture of lower end patella of right side.
PW8 in his cross-examination has admitted ~
No.1 i.e., pain and swelling presenton,right–‘l{ne*el’_wasV fresh
in nature, but injury No.2 was an old
not say exactly which object had”caused..said
10. From the evidenc’e.__pof find lee’:-e;am: glaring
discrepancies. examined PW3
on the follovvingtday deposed that
there was ~oi:_ knee. At the relevant
time, zlldrfiinistrative Medical Officer
of Magvadi ..–~PW1 has deposed: PW3 was
brought byl4Magadi’V*.Police'”ilvith history of assault caused on
at al5out”;i1 pm; on examination, PW} found
” _ following _in}u1tie’a: —
if ‘ ‘clear cut incise injury on left side of the neck,
. Vllrrieasuring 4 ems X 1 cm, skin deep, bleeding with
clot present. W’ (3EQ\.LM;>/cbxéafi ,~_
10
II. A clear cut incise injury on right thigh, measuring 4
cms X 1 cm, skin deep, bleeding with clot present;..V_
Thus, we find medical evidence given by
contradictory. We also see from description of i_njuri.esVgi.£Jienv..
by PW1 that both the injuries are sirfnlar.inrdiinensions.” ill
1 1. The injured eyexrsritness–l?lW.l’.3V§’v’ has ‘v’inco§nsistent
and incredible any of
the accused had assaulted_on_Vhi»s_V clubs, even
then PW8 has ;ie;:’g;té¢d on 24.02.1999
at about swelling present on
right kI_iee”it”Wafs_ ‘ ~ »
:2. Thus. find visited Victoria Hospital after
fourqinorrths to”getVaddi’i;ional medical certificate to aggravate
nature injuries. PW3 has deposed that occurrence took
‘place .in’vfront i\/Eagadi Police Station. However, police were
not”‘aware’otA”:galata that took place on the date of occurrence.
:.”Contra1″y– to this, we find first information marked as Ex.P.2
it was lodged at 1}..45’p.m. on the date of occurrence. We also
N o£cx.._..4.r:>»«»~«:»Q2«
11
find. first information. which was prepared on the basis of
first information was received by jurisdictional Magistrate on
26.10.1998 at 4 pm. Therefore, from the CVidQI1(“)’t3.V:C$iru
and contents of first information, it is clear that”
information had not come into existencer at3,the« Voftime,
borne by it.
13. ‘ PW3 has deposed; on th’e»V:VV.fo1Iowin’g.day.hat 5.1;-silt 3.30 V
p.m., he came to Victot*ia._ treatment; one
Byanna and Parvathamnia; aunt of PW3
accompanied;.P’?it?{‘to PW2, PW4
& PW5 toijk PW3 had not observed
whether ._ stained with blood or not. PW3
has deoosocl; condition on the next day
of ft1j§ie’Vincident.A-Joolice recorded his statement at about 10.30
Government Hospital in the presence of PW1.
PR;’i”.aT’;;?_..~+i\/£i.V;iCiVz..1£agiriyaiah is stated to be an eyewitness to
the”‘*occ–iirrcnce. PW2 has deposed; at the time of occurrence,
. PW2 came near the Government Hospital which is at a distance of
/L.,. ./’\«”g-”’\ ‘-51
12
200-250 feet from the police station, at that time PW3 to
PW5 were present with PW2; PW3 to PW5 were pl_”{)(.’aC-€i’_’>C’11’-.1_’1g
ahead of PW2, PW2 was proceeding towards itpu’ .
see a patient; at that time, accusedA»Nos.1.”to’~*/{eoiifronted
PW3; accused No.1 held PW3 and:’»slap-pied onhits”-facet;-i__PWv3f
shouted; on hearing the sa:ne..__ PW2g_came ibaoVi:.;v4_Vacofu.sed_
Nos.3 <3: 4 had held PW3 andfiavccuusedff intiicted cut
injuries on left side of of PW3 with a
blade; PW3 sustained Vcitothes of PW3 were
stained with
15. had intervened and
pacified –. others shifted PW3 to Magadi
General fHo_spita1f.” information was lodged by
PW??? if if in
ii 6:. i. Attthis..£jVu–ncture, it is relevant to state that PW3 has
notf’depos’ed.V_that accused No.1 had slapped on his face. PW3
has deposed that accused 1, 3 & 4 were instigating
A 5]” accused No.2 to 1:111 PW3.
13
During cross–examination. PW2 has deposed; after the
occurrence, four persons carried PW3 to hospital and was
unconscious; on the date of occurrence, the police” _
enquire PW3 and PW3 had not given his .state.n_:ent: befo1fe”
police and police were present in the hosapi’tal;.. 1 l
17. From the contents ofllizzst infofr1:atio:n as,”
Ex.P.4. I find PW2 had not stated’ unconscious
after the occurrence; ‘«–_too;g.V. fizgapon of assault – a
shaving blade imznediaiiely after wrapped and put
it in his pocket; of lodgilng’fi1*”st information, PW2
told assaultlwas with him; but police
told PW2 give ~sa1ne”on.–~the following day morning.
l8g._{l ‘Contrary . evidence. we find the Investigating
‘R ….. ‘
‘prepared afipanchanama on the following day
“‘ nears Apiace cifoccurren
‘ and a blade was seized from the
place -oclcurrence. Thus, we find PW2 has given
exaggerated version and his evidence is inconsistent with the
” ‘evidence of PW3 and spot mahazar.
15
No.1 fisted on his face. We do not find any” injuries on the
face of PW3. PW3 has not deposed that accused 3 8;
him. PW3 has not deposed that accused 2 8: 3 hja”c1~u
him as “boli magane” and “sule magane”.
During cross-examination, ‘deposed:.”aftef_i”fi~§é.i.ip
minutes of galata police came hear place of_o’ecuzjrer1ce’i at = ‘
that time, police apprehended seized the
blade from his possesvsi’_oii.ai’3d igtheftyv’:d’c’cused ran away;
police had not PW4 and
others did 1, 3 8: 4 as they
were taking was present in the
hospitalgpup mid night on the date of
occurrence’; >’ ”
21. this jiinctiire, is relevant to state that PW2 has
stated had collected a blade from the place of
he had wrapped it and kept it in his pocket:
whefi fir3t’1rstorn1ation was lodged, PW2 wanted to hand over
Jth.eVasa1n’e–* to police; police told him to hand over the same on
[La ?
16
the following day. Contrary to this, PW4 has deposed: police
seized the blade from accused No.2 from place of occurrence’.
22. At the relevant time, PW7–K.Ravishankar V’
as the Subwinspector of Magadi Police Stationi” it
deposed; on 24.10.1998, at about
PW2, PW6–Thamrnaiah and QW5-Chandrashekl1;ara~ “and ‘ it
prepared spot/ seizure place of’ occurrence; at
that time, PW’? seized a from place
of occurrence; uatjlthat Shirt, banian
and a lungif. of panchas; on
the PC 1356 and PC 808
produced police station before him; PW’?
arrested them before JMFC at
Magajriiv with a rerriand application.
‘find the evidence of PW4 that accused No.2
xvifaslllapprehejnzded by police from the place of occurrence and
immediately after the occurrence is blatantly lse.
N,
I
17
I
24. PW5-Jayaram is stated to be an eyewitness. PW5 has
deposed; he was proceeding along with PW2 &
were ahead of PW3; PW5 heard shouting of _
hearing shouting, they turned back and saw~»th:e.V it
persons were making galata with PW3;
3 & 4 were holding PW3; PW5.*saw accused’
PW3 with a blade over his left neclk-andlriglit thigh:
PW3 sustained bleedingziingurjeslll lfieftpgsidelvof neck and
right thigh and blood was others shifted
PW3 to Govern;iic’:it:jHoslpital tor l
25. From evideielce oi i~ version of occurrence
is altogether to PW4 have not deposed that
accused hlade and inflicted on PW3 after
PW3.*waslAhe1d by accused 1, 3 & 4.
_V Duringvpcrossexarnination, PW5 has deposed; on the
over weapon of assault ~– 21 blade to
–g police. has deposed; police came to place of occurrence,
.e,lvhoi:u¢’VerV”‘they did not apprehend the accused. PW5 has
(1% .c~w~44~-
18
deposed that police took his signature and the signature of
PW3 to the first information.
26. Thus, we find the evidence of injured
and eye–Witnesses is highly discrepant: the11:4′::exr:d.§5§r;§:e V’
inconsistent and contradictory on vital-.aspe’cts. Ti51e point of
time and date on which first infor’fi’2at:ion’ffwas– iodged
certain. The first inforrnation,_V_”which “wast _iodged_”‘atw1j1.45″i V
p.m. on 23.10.1998 had not…uVreach_ed ggurfiisdicfionai
Magistrate till 4 had visited
Victoria Hospitai after,”a”’per.iod._”o_f ‘ roonths to get a
second 1-to aggravateffwfnature of offences.
The version’ ofgiven by PW2 to 4 is inconsistent.
It aiso 1oo’i;s improhfahletiyiat PW3 had suffered identical cut
injtiries ‘on left of his neck and right thigh. Both the
.i’n3’uries’ wereaincised injuries, measuring 4 ems x 1 cm X
s1{inVgdeef§’;..v,vgt[iif:§’:”description of injuries does not tally with the
Weapon._’of”‘a’ssau1t. The Medical Officer has not deposed that
there was gapwof injuries. The evidence of eyewitnesses
“rand-A”fevidence of Investigating Officer regarding recovery
{L7 , D1 “”‘3(“‘”*
20
27. In the result, I pass the following-
ORDER
The appea} is accepted. The impugned judgment is ‘ ‘d L. 1
aside. Accused 2 8: 3 are acquitted of offences pun1si1a–‘£i1§:\.V
under sections 341, 323, 324 a 504 r/W f1*:%ie_E}.a;i1–. 4’
bonds executed by them stand cancelled fine”amou1’1’t if d
any deposited by accused 2 & 3 shall be td
SNN