IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL APPEAL NO.938 OF 2013 C/W CRIMINAL APPEAL NO.363 OF 2014 IN CRIMINAL APPEAL NO.938 OF 2013 BETWEEN:
1. BORGUNDI RAMAPPA SON OF BASAVANYAPPA AGED ABOUT 55 YEARS AGRICULTURIST 2. GOPLAPPA SON OF BASAVANYAPPA AGED ABOUT 58 YEARS AGRICULTURIST 3. HUCHAPPA @ KUMBRI HUCHAPPA SON OF KERIYAPPA AGED ABOUT 35 YEARS AGRICULTURIST 4. CHANDRAPPA SON OF ANDIGE CHANDRAPPA AGED ABOUT 35 YEARS AGRICULTURIST 5. BHUVANESHA SON OF CHOWLAPPA AGED ABOUT 35 YEARS AGRICULTURIST 6. RAVI @ RAVIKUMAR SON OF UDURAJAPPA AGED ABOUT 22 YEARS AGRICULTURIST 7. NINGARAJA SON OF RAMAPPA IDAGODU AGED ABOUT 35 YEARS AGRICULTURIST 8. SHIVKUMARA SON OF HANUMANTHAPPA AGED ABOUT 32 YEARS AGRICULTURIST 9. SOMAPPA @ SOMASHEKAR SON OF RAMAPPA BYRUGUNDI AGED ABOUT 25 YEARS AGRICULTURIST 10. RAVI @ RAVIKUMAR SON OF KYADIGEKOPPADA AGED ABOUT 22 YEARS AGRICULTURIST 11. MUDEN KUMAR SON OF RAMAPPA AGED ABOUT 40 YEARS AGRICULTURIST 12. SOMASHEKARA SON OF THALAGUPPADA CHANDRAPPA AGED ABOUT 31 YEARS AGRICULTURIST 13. MAHESHA SON OF HANUMANTHAPPA TADNER AGED ABOUT 35 YEARS AGRICULTURIST 14. KALLAPPA SON OF RAMAPPA KARENAR AGED ABOUT 53 YEARS AGRICULTURIST 15. HANUMANTHAPPA KARENAR SON OF RAMAPPA AGED ABOUT 31 YEARS AGRICULTURIST.
ALL ARE RESIDENTS OF HUNASEKATTE VILLAGE SHIKARIPURA TALUK-577 427. ... APPELLANTS (BY SRI. SHANKARAPPA S., ADVOCATE) AND:
STATE OF SHIRALKOPPA POLICE REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU-560 001. ... RESPONDENT (BY SMT. NAMITHA MAHESH B.G., HIGH COURT GOVERNMENT PLEADER) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CRIMINAL PROCEDURE CODE PRAYING TO SET ASIDE THE ORDER DATED 21.08.2013 PASSED BY THE I ADDITIONAL SESSIONS JUDGE, SHIMOGA IN SESSIONS CASE NO.118 OF 2009 CONVICTING THE APPELLANTS/ ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 143, 144, 147, 148, 448 AND 324 READ WITH SECTION 149 OF INDIAN PENAL CODE.
IN CRIMINAL APPEAL NO.363 OF 2014 BETWEEN:
STATE OF KARNATAKA REPRESENTED BY SHIRALAKOPPA POLICE SHIMOGA-577 427. ... APPELLANT (BY SMT. NAMITHA MAHESH B.G., HIGH COURT GOVERNMENT PLEADER) AND:
1. BORGUNDI RAMAPPA SON OF BASAVANYAPPA AGED ABOUT 60 YEARS AGRICULTURIST 2. GOPALAPPA SON OF BASAVANYAPPA AGED ABOUT 63 YEARS AGRICULTURIST 3. HUCHAPPA @ KUMBRI HUCHAPPA SON OF KERIYAPPA AGED ABOUT 40 YEARS AGRICULTURIST 4. CHANDRAPPA SON OF ANDIGE CHANDRAPPA AGED ABOUT 40 YEARS AGRICULTURIST 5. BHUVANESHA SON OF CHOWLAPPA AGED ABOUT 40 YEARS AGRICULTURIST 6. CHANDRASHEKARAIAH @ NAGAIAH HIREMATH AGED ABOUT 35 YEARS AGRICULTURIST 7. RAVI @ RAVIKUMAR SON OF UDURAJAPPA AGED ABOUT 27 YEARS AGRICULTURIST 8. NINGARAJA SON OF RAMAPPA IDAGODU AGED ABOUT 37 YEARS AGRICULTURIST 9. SHIVAKUMARA SON OF HANUMANTHAPPA AGED ABOUT 37 YEARS AGRICULTURIST 10. SOMAPPA @ SOMASHEKAR SON OF RAMAPPA BYRUGUNDI AGED ABOUT 30 YEARS AGRICULTURIST 11. GANAPATHI @ BYRUGUNDI GANAPATHI SON OF GOPALAPPA AGED ABOUT 35 YEARS AGRICULTURIST.
12. RAVI @ RAVIKUMAR SON OF KYADIGEKOPPADA BASAPPA AGED ABOUT 27 YEARS AGRICULTURIST 13. MUDEN KUMAR SON OF RAMAPPA AGED ABOUT 45 YEARS AGRICULTURIST 14. SOMASHEKARA SON OF THALAGUPPADA CHANDRAPPA AGED ABOUT 36 YEARS AGRICULTURIST 15. VEDAMURTHY SON OF TAKAPPA BORUGUNDI AGED ABOUT 28 YEARS AGRICULTURIST 16. MAHESHA SON OF HANUMANTHAPPA TADNER AGED ABOUT 40 YEARS AGRICULTURIST 17. KALLAPPA SON OF RAMAPPA KARENAR AGED ABOUT 58 YEARS AGRICULTURIST 18. LOKESH KARENAR SON OF KALLAPPA AGED ABOUT 65 YEARS AGRICULTURIST.
19. HANUMANTHAPPA KARENAR SON OF RAMAPPA AGED ABOUT 36 YEARS AGRICULTURIST.
20. NAVEEN @ NAVEEN KUMAR AGED ABOUT 23 YEARS STUDENT 21. CHANDRAPPA SON OF HANUMANTHAPPA THALAGUPPA AGED ABOUT 50 YEARS AGRICULTURIST 22. DEVENDRAPPA SON OF BHEEMAPPA AGED ABOUT 27 YEARS TRACTOR DRIVER.
ALL ARE RESIDENTS OF HUNASEKATTE VILLAGE SHIKARIPURA TALUK-577 427. ... RESPONDENTS (BY SRI. SHANKARAPPA S., ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) AND (3) OF CRIMINAL PROCEDURE CODE PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER DATED 21.08.2013 PASSED BY THE I ADDITIONAL SESSIONS JUDGE, SHIMOGA IN SESSIONS CASE NO.118 OF 2009 ACQUITTING THE RESPONDENT/ ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 447, 341, 427, 506 AND 302 READ WITH SECTION 149 OF INDIAN PENAL CODE.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 03.09.2019, COMING ON THIS DAY, H.P. SANDESH, J., PRONOUNCED THE FOLLOWING:
JUDGMENT These two appeals are filed by accused Nos.1, 2, 3, 4, 5, 7, 8, 9, 10, 12, 13, 14, 16, 17, 19, seeking to set aside the judgment and order of conviction for the offences punishable under Sections 143, 144, 148, 324 and 448 of Indian Penal Code and also by the State, questioning acquittal of accused persons for the offences punishable under Sections 302, 447, 341, 427, 506 r/w Section 149 of Indian Penal Code respectively, passed by the I Additional Sessions Judge, Shimoga by order dated 21.8.2013 in S.C.No.118/2009.
2. The brief facts of the case are:
It is the case of the prosecution that P.W.11 Kavitha was in love with P.W.4 Prabhu who is the son of deceased Hanumanthappa. The said love affair continued for five to six months prior to the date of incident i.e., on 24.06.2009. It appears, there was an attempt in the village to get them married but there was resistance from the family of the deceased, although the defence seems to suggest that deceased had accepted the said affair and got P.W.4 and 11 wedded, which is not admitted by the prosecution witnesses. Be it as it may. On 24.06.2009, P.W.1 Chandraswamy i.e., the complainant came to the house at around 4.00 p.m. and he was allegedly informed by his mother and grand mother who are P.W.2 Mokshamma and P.W.3 Hoovamma that the accused persons were destroying the crops on their land using the tractor driven by accused No.22. He replied that accused persons were outnumbering him and he was helpless and decided to stay at home. It is the further case of the prosecution that all of them after destroying the jowar crop came to the house of deceased Hanumanthappa and when the inmates of the house attempted to close the door preventing the entry of the accused persons, accused No.7 who had a crow bar MO.1 in his hand broke open the front door of the house of the deceased and they formed unlawful assembly and armed with dangerous weapons have trespassed into the house with the coconut shell, clubs, reapers that were in the house of the deceased and started to assault the deceased as well as P.Ws.1 to 3 mercilessly. They were severely beaten up by the accused persons. There were independent assaults by different accused persons. On seeing the severe assault on the wife, mother and son, the deceased Hanumanthappa brought a poison bottle and asked the accused persons to stop the assault or else he would consume the same. The accused persons instead of pacifying him, urged him to consume poison and said that even if he consumes poison, they would not spare his family. It is also the case of the prosecution that the accused persons have dragged the said Hanumanthappa and forcibly administered poison to him. This incident was informed to P.W.14 Nagaraj and P.W.13 Benakappa of neighbouring village who came and informed ambulance. The accused persons have prevented them in shifting the injured persons to hospital and sent back the ambulance. However, they managed to shift the injured persons in their motor cycle to little extent and thereafter sent the injured persons in an ambulance. The Shiralakoppa police on the information, arrived to the spot and shifted P.Ws.1 and 3 to Soraba hospital for treatment and thereafter, recorded the statement of P.W.1 in terms of Ex.P1 and registered the case at the first instance for the offences punishable under Sections 143, 144, 146, 147, 148, 324, 447, 448, 427, 506, 114, 306 and 511 read with section 149 of Indian Penal Code. The injured Hanumanthappa died on the same day and hence instead of Section 306, Section 302 was invoked. The Investigating Officer, after registering the crime investigated the matter and collected the materials and recorded the statement of witnesses. After completion of investigation, the police have filed the chargesheet for the offences punishable under Sections 143, 144, 146, 147, 148, 447, 448, 324, 427, 341, 506, 114 and 302 read with section 149 of Indian Penal Code.
The accused persons were secured and they did not plead guilty. In order to prove the case of prosecution, it has relied upon the evidence of P.Ws.1 to 27 and got marked Exs.P1 to P42(a) and also relied upon M.Os. 1 to 15. The defence relied upon Ex.D1, and D1(a). The accused did not chose to lead any evidence. The Court below after hearing the arguments of both, the learned Special Public Prosecutor as well as the defence counsel, acquitted all the accused persons for the offences punishable under Sections 447, 341, 427, 506, 302, read with 149 of Indian Penal Code and convicted accused Nos.1 to 5, 7 to 10, 12 to 14, 16, 17 and 19 for the offences punishable under Sections 143, 144, 148, 448, and 324 read with section 149 of Indian Penal Code.
3. Being aggrieved by the judgment of conviction, the accused persons have filed Crl.A.No.938 of 2013. The grounds urged in the memorandum of appeal are that, even though there are more than hundred houses in the said village, the prosecution did not rely upon any of the independent witness and the witnesses who have been examined before the trial Court are not independent witnesses and the prosecution has only examined very highly interested witnesses who are very close to P.Ws.1 to 5. The Court below also erred in not considering the material contradictions in the evidence of P.Ws.1 to 3 and even though the Doctors who have been examined as P.Ws.16 and 17 have opined that the injuries sustained by P.Ws. 1 to 3 are simple in nature and the said injuries could be caused due to fall on a rough object, the said important aspect has been completely ignored by the Court below. The police did not register the case immediately even though they went to the spot immediately after receiving the telephone message that there was galata in Hunsekatte Village and meanwhile, deceased was shifted to hospital. Thereafter, they went to hospital and took written complaint of P.W.1. P.W.1 has given the complaint only after five hours of the incident. Though death of deceased Hanumanthappa was due to consuming of poison, the same was twisted as forcible administering of poison. Though accused persons were acquitted for the offence punishable under Section 302 of Indian Penal Code, it ought to have acquitted the accused persons for the other offences also. The other contention of the learned counsel appearing for accused persons is that the motive for the alleged incident is in connection with love affair between P.Ws.4 and 11. Though, P.W.11 had married P.W.4, she was not allowed inside the house of P.W.4 and in fact she used to stay in the podium of the house of P.W.4 for the whole day. Thereafter, she would leave to her house during night times and the same was not tolerated by deceased Hanumanthappa as he was in favour of P.W.11 and in fact the said Hanumanthappa was eldest person in the village and he used to lead panchayath. Since he did not tolerate the conduct of P.Ws.1 to 4, he consumed poison and died. This fact has not been considered by the trial Court. Hence, the order of conviction passed by the trial Court requires to be interfered with and is to be set aside.
4. Per-contra, in the appeal memorandum of Crl.A.No.363/2014 filed by the State, it is contended that the learned Sessions Judge has not properly appreciated the evidence of P.W.1-complainant who is also injured and other injured witnesses P.Ws.2 and 3 who have also sustained injuries and it has committed an error in acquitting the accused persons for the offence punishable under Sections 302 r/w Section 149 of Indian Penal Code. The learned Sessions Judge also failed to appreciate the evidence of P.Ws.4, 11 and also the evidence of P.W.5 who is also the eyewitness to the incident. The Court below also failed to appreciate the evidence of P.Ws.16 to 18, the doctors who have treated the injured persons and also the who conducted the post mortem examination over the body of the deceased. Further, the Court below has failed to appreciate the evidence of P.W.12 on the ground that she is the blood relative of the deceased. In fact, the evidence of blood relative is not inadmissible, but their evidence has to be scrutinized with care and caution and the same has not been done by the Court below. Hence, prayed this Court to set aside the judgment of acquittal of passed by the trial Court for the offences punishable under Sections 447, 341, 427, 506 and 302 r/w Section 149 of Indian Penal Code.
5. The learned counsel appearing for the accused in his arguments has vehemently contended that the Court below has committed an error in relying upon the evidence of interested witnesses. The prosecution did not examine any of the independent witnesses and the witnesses who have been examined are all relatives and interested witnesses of P.Ws.1 to 5. It is admitted in the evidence that there were more than 100 families in the village and none of the villagers have been examined before the Court except relatives. The trial Court ought to have considered the evidence in toto instead of considering the evidence of only interested witnesses. Accordingly, prayed the Court to allow the appeal and to set aside the judgment of conviction passed by the trial Court.
6. Per-contra, learned High Court Government Pleader appearing for the State would contend that the evidence of PWs.1 to 3, 5 and 12 is consistent regarding the incident and so also, regarding destruction of jowar crop grown in the land belonging to the complainant. The Court below has committed an error in not appreciating the evidence particularly, the evidence of P.W.12 who witnessed the incident of destruction of crop with the help of driver of the tractor- accused No.22 and thereafter, they rushed to the house of the complainant and subjected all the family members for assault, as a result, deceased had sustained injuries, which is reflected in the post mortem report. The Court below has committed an error in acquitting the accused for the offence punishable under Section 302 r/w Section 149 of Indian Penal Code and other offences and coming to the conclusion that deceased himself consumed poison and accused persons have not administered poison to him. Hence, the judgment of the trial Court in so far as acquittal of the accused persons requires interference and the same has to be set aside and accused persons have to be convicted for the offences punishable under Sections 302, 447, 341, 427, 506 r/w Section 149 of Indian Penal Code.
7. Having heard the arguments of the learned counsel appearing for the accused persons and the learned High Court Government Pleader and also on perusal of the material available on record, the points that would arise for our consideration are:
(i) Whether the Court below has committed any error in convicting the accused persons for the offences punishable under Sections 143, 144, 148, 324 and 448 read with Section 149 of Indian Penal Code?
(ii) Whether the Court below has committed an error in acquitting the accused persons for the offences punishable under Sections 302, 447, 341, 427, 506 r/w Section 149 of Indian Penal Code?
(iii) What order?
8. Keeping in view the contentions urged by the learned counsel appearing for the respective parties, now let us consider the evidence available on record in a nutshell to arrive at a conclusion.
9. The prosecution relies upon the evidence of P.Ws.1 to 3 who are the injured persons and their evidence is similar, since they are the inmates of the house where the alleged incident has taken place. P.Ws.1 to 3 in their evidence have stated that on 24.6.2009 when all of them were in the house, accused persons trespassed their house breaking open the door and mercilessly assaulted the inmates of the house. It is also their evidence that prior to coming to their house the accused persons had destroyed the jowar crop which they had grown in their land by using the tractor driven by accused No.22. In their evidence they have specifically deposed with regard to the overt act of each of the accused persons and so also, the overt act made against the deceased. It is also their evidence that there were differences between them in connection with love affairs between P.W.4 and P.W.11. It is also their evidence that accused persons have dragged the deceased Hanumanthappa to the podium outside the house. He was forced to sit there and then the accused persons have forcibly opened his mouth and administered poison to him. Some of the accused persons had held the deceased while others were administering poison to the deceased. At that time, C.W.5 Smt.Yashodamma and C.W.6 Santhosh acme there and questioned them and they were also abused and intimidated. Thereafter, accused persons went away with poison bottle and crow bar and threw away reapers and coconut shell at the place of incident. Thereafter, P.Ws.13 and 14 came there and shifted the injured Hanumanthappa and other injured persons in their motorcycle to little distance and thereafter, shifted them in the ambulance. Injured Hanumanthappa passed away in the hospital at around 8.30 p.m. on the same day. The police also arrived at the hospital around 9.45 to 10.00 p.m. and recorded the statement of P.W.1 in terms of Ex.P1. P.W.1 identified the crow bar as M.O.1, M.Os.2 to 6 as three reapers and two wooden pieces, M.O’s 7 to 9 as three coconut hoods, so also, the clubs as MOs.10 and 11 used for commission of the offence. P.W.1 also identified the pesticide bottle as M.O.12. The photographs of the deceased Hanumanthappa as Exs.P2 to 9. It is also his evidence that they had suffered a loss of Rs.1.5 lakhs to Rs.1.75 lakhs due to destruction of the jowar crop. The accused persons have instigated one Smt.Lalithamma belonging to the schedule caste to lodge an atrocity case against their family and in the said case their family members were acquitted. Due to the affair of Kavitha P.W.11 with P.W.4, there was a strained relationship between accused persons and the family of the complainant.
In the cross-examination of P.W.1 it is elicited that he knows accused persons and he has signed the complaint Ex.P1. The fertilizer shop owners used to issue receipts when their family had purchased jowar seeds, fertilizer and pesticide and the said receipts are not handed over to the police. He also admits that Shiralkoppa police station is about 15 kms. from their village and one can reach the police station within 20 minutes. He also admits that his mother did not inform him the names of the villagers who had destroyed the jowar crop. He also admits regarding the love affair between P.W.4 and P.W.11 Kavitha. Further admits that many panchayaths were held in that behalf in the village. He denies the suggestion that they both got married already. He volunteers that there was no wedding, but the villagers had attempted to leave P.W.11 on the podium outside their house. It is further admitted that she lived on the said podium for about four months. It is suggested that their marriage was held in Rameshwara temple of their village and the same was denied. He admits in the FIR at Ex.P1 that he has not stated to the police that the accused persons told his father that they would not spare them even if his father consumed poison and there was an attempt to administer poison to him and his father consumed poison due to the instigation and harassment of the accused persons to his father. In the FIR he has not stated that accused persons went away with poison bottle and they threw away the reapers and coconut hood at the place of incident. P.W.1 in his further cross-examination also admits that he did not make any attempt to inform the police when his mother told him that villagers had destroyed the jower crop. He also admits that when P.W.11 Kavitha was staying in the podium they were always closing the door of the house.
P.W.1 also admits that M.O.12 poison bottle was in their house only. He was unable to state as to who assaulted his father and how many times he was assaulted.
In the cross-examination of P.Ws.2 and 3 also similar answers are elicited regarding the strained relationship and also the love affair between P.Ws.4 and 11 and so also, the poison bottle being in their house.
They did not inform the police when they were destroying the crop and panchayath was held in the village in respect of P.Ws.4 and 11.
10. P.W.4 is the brother of P.W.1. He has stated that he was not in the house at the time of incident. In his evidence he states that when he came to know about the incident, he had telephoned to the ambulance and also requested the police to go to his house and thereafter, he went to Shiralakoppa police station. He was subjected to cross-examination.
In the cross-examination, he admits that P.W.4 was staying on the podium of her house for nearly six months prior to the death of his father. He contends that he was only talking to her. He further admits that after hearing about the incident in about 10 minutes he was at the police station and told the police. PSI Devaraj was at the police station and he narrated the incident to him.
11. P.W.5 claims that he is the eyewitness to the incident. He is also the relative of P.Ws.1 to 3. In his evidence he states that incident has taken place at 4.00 p.m. and he heard the neighbours talking that there was galata at the house of the deceased. Therefore, himself and his mother went near the house of the deceased and they saw all the accused persons shouting, scolding and assaulting. When they questioned, they threatened and intimidated and hence, he simply watched the incident. He also identifies M.O.1 crow bar and he says some of the accused persons have assaulted P.Ws.1 to 3.
In the cross-examination, he admits that there are number of houses between his house and the house of Hanumanthappa. He further admits that when they went to the place of incident, the lock of the door of the deceased was opened, but they stayed outside the house. At the time of incident except accused persons none other villagers were present. He admits that he attempted to save Hanumanthappa and his family members from the assault made by the accused persons. Accused persons did nothing to him. He did not lodge the complaint to the police as he was alone in the house and he had to look after the cattle in the house, besides he had no vehicle. The accused persons had destroyed the entire jowar crop in the six acres of land of Hanumanthappa. He does not know the number of tractor, but it belongs to Koodalli village. He claims, the officers of Agricultural Department have assessed the damage to jowar crop and he does not know what was their estimation.
12. P.W.6 in his evidence states that he came to know that Hanumanthappa died because he was assaulted and also administered poison by some villagers of Hunsekatte. He identifies the photos Exs.P2 to 7 and the inquest mahazar drawn in terms of Ex.P11(a). He admits that deceased Hanumanthappa is his distant relative. It is suggested that he is deposing at the instance of police and the same was denied.
13. P.W.7 in his evidence states that he identified the clothes of deceased Hanumanthappa in terms of M.Os.13 to 15 and that police have read over the contents of mahazar and he attested Ex.P11(b). He also admits that he knows the deceased Hanumanthappa, but he is not his relative. It is suggested that he is deposing falsely at the instance of the police and the same was denied.
14. P.W.9 in his evidence states that when he had gone to the house of deceased Hanumanthappa, on that day, his wife Smt.Mokshamma and Shiralkoppa police were present. At around 5.30 p.m. Mokshamma had shown the place of incident to the police and the police have drawn the mahazar at her house and seized two reapers, three coconut hoods and 4 tamarind clubs. The front door of the said house was broken. He identifies M.Os.2 and 3, 5 and 6 and 7 to 9. He also identifies his signature in terms of Ex.P10(b). It is elicited that police had seized two wooden pieces of the door, but not the entire door. He is also not the resident of Hunasekatte village. He had not seen the assault. When he went to the house of Hanumanthappa only his widow Mokshamma was present.
15. P.W.10 in his evidence states that he had been to police station on 26.6.2009 sine he was called to the police station. He found accused Nos.4, 7 and another witness C.W.19. On enquiry, accused No.4 told the police that he would show the wooden pieces with which he had assaulted while accused Ravi told the police that he would show the poison bottle and iron crow bar used to break the door of the house, if he is taken to a culvert on the way from Channapura to Henasekatte. Accordingly, all of them went and in the culvert, accused Ravi picked up the poison bottle and a crow bar from beneath the culvert and handed over to police. Chandrappa went further in the said place and picked up a wooden piece from a nearby drainage and handed over the same to the police. The police have drawn the mahazar in terms of Ex.P12 and he has signed the same as per Ex.P12(a).
In the cross-examination, he admits that he is not the resident of Hunasekatte. The deceased is not his relative. It is suggested that the accused did not lead him and the police and also not produced any articles and the same was denied.
16. P.W.11 in her evidence states that the deceased Hanumanthappa died by consuming poison and deposed that the family members of Prabhu i.e., P.W.4 had accepted their relationship and then only their marriage was performed. The police had not recorded her statement and she turned hostile. Treating her hostile, the Court has observed that there is no document to evidence that she is the wife of P.W.4.
In the cross-examination it is elicited that she had not given any complaint to the police stating that Prabhu had loved her and promised to marry her and that he had cheated her. It is suggested that, in terms of Ex.P13 she has given the statement and the same was denied. she did not support the case of the prosecution.
17. P.W.12 in her evidence states that there was a rumour in the village that P.W.4 and 11 had love affair. On the date of incident at about 2.30 p.m. she was returning from her wet land to home. The road in which she was coming to her house was adjacent to the land of the deceased Hanumanthappa. The accused persons who are before the Court were all present at the said land and they were destroying the jowar crop grown by deceased Hanumanthappa. They were doing so with a tractor and a cultivator driven by accused No.22. Later, she came to know that accused persons had gone to the house of Hanumanthappa at 4.00 p.m., broke open the front door and assaulted and as a result, Hanumanthappa died at around 8.30 p.m. The jowar crop destroyed was aged one month and it was a very good crop. The police have drawn the mahazar in terms of Ex.P14. The police also later called her to police station and she identified the tractor and mahazar was drawn and she identified the photo of the tractor as Exs.P15 and P16.
In the cross-examination, she admits that she does not remember on what day she had seen the destruction of the crop as she is an illiterate. She admits that deceased Hanumanthappa is her maternal uncle and P.Ws.13 and 14 are her brothers by relation. It is elicited that she has seen accused persons breaking open the door of house of Hanumanthappa and also assaulting Hanumanthappa, Mokshamma, Chandraswamy and Hoovamma. Again she states that she was not present at the house of Hanumanthappa at the time of incident.
18. P.W.13, in his evidence, states that he received a phone call from somebody on 24.6.2009 at about 4.00 p.m. that about 75-80 persons were assaulting Hanumanthappa and his family members. He went in bike along with P.W.14. When he was going towards Hunasekatte village there was an ambulance van which had come to the said village but some of the villagers had told the driver of the ambulance that there was nothing in the village and had sent him back. He went to the house of Hanumanthappa and found Hanumanthappa serious. He shifted Hanumanthappa in his bike making him to sit on the petrol tank while P.W.14-Nagaraj shifted Mokshamma in his bike. In about 20-30 yards from the house of the ambulance was being reversed to return they stopped it and both the injured were shifted in the ambulance to Soraba hospital. Later, he came to know that Hanumanthappa died in the Shimoga hospital.
In the cross-examination he admits that deceased Hanumanthappa is his relative and nothing is elicited that he did not shift the injured persons.
19. P.W.14 also reiterates the evidence of P.W.13.
In the cross-examination he admits that Hanumanthappa is his father-in-law and he was mentally upset over the issue of Kavitha and Prabhu.
20. P.W.16 is the medical officer who treated P.Ws.1 and 3 and issued wound certificate in terms of Ex.P18 and 19 and also identified the injuries found in photographs which are marked as Exs.P21 to 23 and opined that injuries are simple in nature.
In the cross-examination he admits that blunt injury to P.W.1 on the right leg could be caused if he dashes against a blunt object. He has not noted the age of the injuries of both the injured. The weapons at M.Os.7 to 9 were not shown to him before seeking the opinion as to whether they could cause injuries as shown at Exs.P18 and 19. The injured has not stated the names of the assailants.
21. P.W.17 is the Doctor who examined Mokshamma. In his evidence he states that the injuries are simple in nature. He has issued Ex.P24 and identified his signature as per Ex.P24(a). The photographs are marked as per Exs.P25 to P28 and states that the injuries could be caused with the use of M.Os.2 to 4 or even with M.Os.7 to 9.
In the cross-examination it is admitted that injured did not tell the names of the assailants. He should have mentioned the measurements of the injuries but he did not. It is suggested that all the injuries stated by him could be caused by a fall on blunt weapons and the same is denied.
22. P.W.18 is the Doctor who conducted post mortem examination of the deceased Hanumanthappa and issued post mortem report in terms of Ex.P29. He also mentioned that on internal examination of the dead body he found muscles of chest and abdomen were contused, the muscles of right leg were also contused with fracture of right tibia in which superficial cortex at the length of 1.5 cm. All the injuries are ante mortem and fresh in nature. He had kept pending the opinion till the receipt of FSL report. Later he had received the FSL report and gave the opinion that death was due to consumption of organo chloro Insecticide. He had also given his final opinion in terms of Ex.P31. The witness was subjected to cross- examination.
In the cross-examination it is elicited that if with M.O.12 anybody is forcibly made to consume the insecticide, there are possibilities of injuries on his lips. He cannot predict the possible period of death ensuing after consumption of insecticide.
23. P.W.19 is the Scientific Officer of the RFSL. In his evidence he states that he has received three sealed articles (clothes) for blood grouping and detecting blood stains. The said blood belonged to ‘O’ group and he issued the report in terms of Ex.P33. The said clothes are also marked as M.Os.13 to 15.
In the cross-examination it is suggested that there are no blood marks on M.Os.13 to 15 and the same is denied. It is elicited that he was not asked whether blood stains on M.Os.13 to 15 matched with the blood of deceased Hanumanthappa.
24. P.W.20 is the Assistant Director of Toxicology regarding conducting of chemical examination of five articles sent to him for chemical analysis. The result of his examination of the said article was organo choloro insecticide detected in all the articles except article No.4. The report is given in terms of Ex.P30.
In the cross-examination nothing is elicited. Only suggestion made was that endosalphan has been banned by the Government and the same is denied.
25. P.W.21 is the witness for seizure of the tractor and mahazar was drawn in terms of Ex.P35.
In the cross-examination it is elicited that he has signed the mahazar as police told that they were releasing the tractor from their custody.
26. P.W.22 is the Police Constable who went to the house of the deceased Hanumanthappa on the information received and states that P.Ws.1 and 3 were lying in the court yard being injured. The injured Hanumanthappa was already taken to hospital in an ambulance. The injured Chandraswamy and Hoovamma were taken to Government hospital, Soraba. The ASI intended to record the statement of Chandraswamy to record the FIR, but he told that he would give complaint in writing and hence, they did not record his statement. Later, Chandraswamy wrote the complaint and gave the same to ASI. ASI registered the case in terms of Ex.P1. At about 8.30 p.m. they have received wireless message that Hanumanthappa died. Then he was deputed to watch the dead body at the hospital.
In the cross-examination it is elicited that they were told that Hanumanthappa had consumed poison.
27. P.W.23, ASI in his evidence also reiterates the evidence of P.W.22. He states that at about 5.15 p.m. they had reached the house of Hanumanthappa. He also states that he attempted to record the statement of P.W.1, but P.W.1 told that he will give complaint later. Later, P.W.1 gave the complaint in terms of Ex.P1 and he issued the FIR. The body was shifted to mortuary and inquest was conducted. The photos of the body of the deceased are at Exs.P2 to 7.
In the cross-examination it is elicited that he had not stated in his statement to the CPI that he had seen the damaged door of the house of Hanumanthappa when he had visited the house on 24.06.2009. They did not record immediately the statements of injured persons at the village. He had also not stated in his statement the reason for non recording of statements of the injured to record the FIR immediately. It was a case of heinous offence. At 12.30 midnight he had handed over the FIR to C.W.38 Chandrappa to submit the same to Magistrate. In the FIR Section 306 of Indian Penal Code is also stated which indicates that there was an attempt to commit suicide due to harassment.
28. P.W.24 is the Engineer who prepared the sketch in terms of Ex.P36.
29. P.W.25 is the PSI who conducted further investigation and drawn the inquest in terms of Ex.P11 and thereafter, Section 302 of Indian Penal Code was invoked. He also recorded the statement of witnesses and thereafter arrested some of the accused persons.
In the cross-examination he admits that when the FIR was recorded the deceased was already dead and a case under Section 306 of Indian Penal Code was registered. Thereafter, 302 of Indian Penal Code was invoked on the next day.
30. P.W.26 took up further investigation of the case.
In his evidence he states that he collected the FSL report and wound certificates. He also recorded the statements of some of the witnesses and had seized the tractor by drawing the mahazar in terms of Ex.P35. He also obtained the post mortem report and also the sketch of the place of incident.
In the cross-examination he admits that he cannot say the model of the tractor seized. He had not examined the owner of the tractor to know as to what was the vehicle number.
31. P.W.27 also took up further investigation of the case. In his evidence he states that he recorded the further statement of P.W.1 and on the same day he had visited the land and drawn the mahazar in terms of Ex.P14. The accused who have been arrested were produced before him and he observed the rest of the formalities. On 27.6.2009 also his staff had arrested some of the accused persons and produced before him.
In the cross-examination it is suggested that the witnesses have not stated in terms of Exs.P13 and 17 and the same is denied.
32. Having considered the oral and documentary evidence available on record, it is seen that the prosecution mainly relies upon the evidence of P.Ws.1 to 3 and 5. P.Ws.1 to 3 are injured witnesses and P.W.5 claims that he is an eyewitness to the incident. The evidence of P.Ws.1 to 3 is consistent with regard to the incident that had taken place in their house and also they have deposed as to whom all have assaulted them and also who assaulted the deceased Hanumanthappa. However, it is their case that the accused persons have forcibly administered poison by dragging the deceased Hanumanthappa to podium and by opening his mouth administered poison. Having taken note of the evidence of P.Ws.1 to 3 it is clear that the same is an improvement and on perusal of Ex.P1 complaint it is seen that there is no such averment in the complaint that deceased Hanumanthappa was dragged and forcibly administered poison.
33. In the complaint it is specifically mentioned that when the deceased Hanumanthappa threatened that if they continue to assault him and his family members, he would consume poison. But they insisted him to consume and further they uttered that even if he consumes poison they will not leave him and his family members. Hence, the accused persons have instigated him to consume poison. If really they forcibly administered poison, it would have been narrated in the complaint at the first instance itself. Hence, it is clear that it is only an afterthought, which was made as forcible administration. The Investigating Officers who have been examined before the Court also have categorically stated that at the first instance Section 306 of Indian Penal Code was invoked and thereafter, 302 of Indian Penal Code is invoked. Having taken note of Ex.P1, the complaint and also the oral evidence of P.Ws.1 to 3, it is clear that administration of poison to the mouth of Hanumanthappa is nothing but an improvement. The other evidence of P.Ws.1 to 3 regarding how the incident has taken place and as to how they were subjected to assault, is consistent. The evidence of the Doctors P.Ws.16 and 17 is clear that P.Ws.1 to 3 were subjected to assault and as per wound certificates issued at Exs.P18, 19 and 24, injuries sustained by P.Ws.1 to 3 are simple in nature. Though it is suggested that those injuries could be caused if a person falls on a hard surface, P.W.19 has categorically denied the same. The photos at Exs.P25 to P28 regarding the assault made on injured persons clearly shows the manner in which they were subjected to assault. So also, Exs.P21 to 23 photos of injured Hoovamma and Ex.P20, photo of injured P.W.1, clearly shows that they were subjected to assault mercilessly by the accused persons. The medical evidence corroborates the assault made by accused persons. Though prosecution claims that P.W.5 was also an eyewitness to the incident, his evidence does not inspire the confidence of the Court that he has witnessed the incident. He has not made any attempt to prevent the assault, but he claims that the accused have intimidated him while he was standing outside watching the incident. However, the answers elicited in the cross-examination shows that he was not present at the spot. Hence, the evidence of P.W.5 cannot be believed. Having taken note of the material on record, it is clear that the deceased himself consumed poison while making an attempt to prevent the assault by the accused persons that he would consume poison if they continue to assault him and his family members and no material with regard to forcible administration of poison.
34. Though there is a delay of five hours in filing the complaint Ex.P1, the complaint discloses that the death of Hanumanthappa was due to consumption of organo chloro Insecticide. Even the evidence of P.W.18, the Doctor who conducted post mortem examination of the deceased is clear that the death was on account of consumption of poison. No doubt, the deceased was also subjected to assault and there were 7 injuries all over his body and the photos Exs.P2 to 7 also confirms that deceased was subjected to assault. But as per the medical evidence the death is not on account of injuries sustained by him, but the same is on account of consumption of poison. Hence, the Court below has rightly come to the conclusion that the offence under Section 302 of Indian Penal Code cannot be invoked and at the most, it attracts the offences under Sections 324 and 326 of Indian Penal Code and the Court below has rightly convicted the accused persons for the offence punishable under Section 324 of Indian Penal Code. But fails to take note of the fact that the deceased had sustained fracture of right tibia in which superficial cortex at the length of 1.5 cm. This medical evidence of P.W.18 had been ignored by the trial Court and the trial Court instead of Section 302 ought to have convicted the accused persons for the lesser offence under Section 326 of Indian Penal Code. The Court below ignored the medical evidence and only convicted for the offence punishable under Section 324 of Indian Penal Code and has failed to invoke Section 326 of Indian Penal Code.
35. The Court below has also taken note of the fact that the incident has taken place inside the house of deceased Hanumanthappa and the accused persons have committed trespass into his house and subjected P.Ws.1 to 3 and also the deceased to assault. However, it is clear that P.Ws.1 to 3 who have sustained injuries have categorically mentioned the overt act of accused Nos.1 to 5, 7 to 10, 12 to 14, 16, 17 and 19. But none of the witnesses have spoken with regard to the specific overt act by Accused Nos.6, 11, 15, 18, 21 and 22. The Court below has also taken note of the said fact into consideration while considering the material evidence on record in paragraph 19 of the judgment. Hence, it has rightly come to the conclusion that there is no specific overt acts of those accused persons. Hence, we do not find any material to convict the accused persons who have already been acquitted by the Court below since the same does not call for any interference.
36. Insofar as acquitting all the accused persons for the offences punishable under Sections 427, 506, 447 and 341 r/w Section 149 of Indian Penal Code is concerned, though prosecution relied upon the evidence of P.W.12 that she has witnessed the incident of destroying the crop grown by P.Ws.1 to 3 and deceased, nothing is on record to show that crops were destroyed. No doubt, P.W.12 is the signatory to the mahazar Ex.P14. But, it has to be noted that though the police have taken photos of the deceased as well as the injured persons, they have not taken any photographs of the destruction of the crop.
Further, P.Ws.1 to 3 have categorically admitted that they did not evaluate the loss of the crop from the experts. However, P.W.4 claims that an expert opinion was taken from the agricultural department and no document is placed before the Court.
37. P.W.12 states that when she was coming back to her house from her wet land she noticed accused persons destroying the crop with the tractor and cultivator belonging to accused No.22. But she claims that it was at 2.30 p.m. It is pertinent to note that though P.Ws.2 and 3 states that they have informed P.W.1 about destruction of the crop when he came to house at 4 O’ clock they did not inform the same to police and also not given any complaint and there is no material before the Court also that crop was destroyed and hence, the Court below has rightly come to the conclusion that there is no any material to show that the crop was destroyed and has rightly acquitted the accused persons for the offences punishable under Sections 447 and 427 of Indian Penal Code. Further, even with regard to Sections 506 and 341 of Indian Penal Code there is no evidence before the Court. Hence, we do not find any error committed by the Court below in acquitting the accused for the offences punishable under Sections 447, 341, 427, 506 r/w Section 149 of Indian Penal Code.
38. The accused persons have been convicted for the offences punishable under Sections 143, 144, 148, 448 r/w Section 149 of Indian Penal Code. The material available before the Court is clear that accused Nos.1 to 5, 7 to 10, 12 to 14, 16, 17 and 19 have formed unlawful assembly and trespassed the house of the deceased Hanumanthappa and subjected the deceased as well as P.Ws.1 to 3 for assault. The motive for assault is said to be with regard to the love affair between P.W.4 and P.W.11. It is also admitted in the cross-examination of P.Ws.1 to 3 that P.W.11 has spent about 4-6 months in the podium of the house of deceased Hanumanthappa and she was not allowed inside their house and they used to close the door of their house.
39. Having considered the material available on record and the overt act of each of the accused persons as spoken to by P.Ws.1 to 3 and also photos Exs.P2 to 7 and Exs.P20 to 28, it is clear that the victims were subjected to assault mercilessly by the accused persons with deadly weapons. Hence, the Court below has rightly convicted the accused for the offences punishable under Sections 143, 144, 148, 448 r/w Section 149 of Indian Penal Code. The accused were not sentenced for the offence under Section 147 of Indian Penal Code since the same was merged with the larger offence under Section 148 of Indian Penal Code. There are no grounds to convict the accused persons as sought in the State appeal for the offence punishable under Section 302 of Indian Penal Code. However, there are materials to invoke Section 326 of Indian Penal Code. Hence the State appeal requires to be allowed in part. Having considered the gravity of offence i.e., fracture of tibia, an appropriate sentence has to be imposed keeping in view the scope and object of Sections 357 and 375A of Criminal Procedure Code since the trial Court while sentencing the accused has not considered the same and imposed only a nominal fine.
40. The offence punishable under Section 326 of Indian Penal Code prescribes punishment of life imprisonment or with imprisonment of either description for a term which may extend upto ten years and shall also be liable to fine. Having taken note of the fact that the incident has taken place a decade ago and in the circumstances of the case, it is appropriate to impose an appropriate fine instead of enhancing the period of imprisonment and the same has to be compensated to the victims.
41. In view of the discussions made above, we pass the following:
ORDER (i) Crl.A.No.938/2013 filed by the accused persons is dismissed (ii) Crl.A.No.363/2014 filed by the State is partly allowed.
(iii) The accused persons are also convicted for the offence punishable under Section 326 read with Section 149 of Indian Penal Code and are sentenced to undergo simple imprisonment for a period of two years and to pay a fine of Rs.10,000/- each. In default to pay the fine amount, they shall further undergo simple imprisonment for a period of three months. The sentence imposed shall run concurrently.
(iv) The fine amount shall be payable to P.W.3, wife of deceased Hanumanthappa.
(v) The accused persons are entitled to the benefit of set off under Section 428 of Cr.P.C.
Sd/- Sd/-
JUDGE JUDGE bkp