Gowdra Thipeshi and Others vs The State of Karnataka

Anand Byrareddy, J—Heard the learned counsel for the appellants.

The appeal in Crl.A. No. 2799/2011 is filed by the accused and the appeal in Cd.A. No. 2602/2012 is filed by the State. The first of these appeals seeks to question the conviction and punishment imposed, whereas the appeal filed by the State seeks enhancement of the punishment imposed on accused Nos. 2, 8 to 12 and 15.

The facts leading to this case are, that according to the complaint, it was alleged that on 25.7.2006 at about 3.10 p.m. Umapati, the complainant had filed a complaint stating that he belongs to the Nayaka caste and he was a resident of Hulikunte village and in the morning on the said day when he was in the house of Honnappa, who had called him to repair his bore-well on his land and when he went near the land of Honnappa, they heard a commotion from the village, which was at a close distance, and they had rushed back to the village along with Honnappa. The time was about 10.30 a.m. and on going to the village they noticed that Tippeshi, Goudra Prakash, Sannakanyappanavar Thippeshi, Sanna Lakshamana, Dodda Lakshamana, Oblesh, Sheshappa, Yekanthappa, Hanamantha Reddi, Rudramuni, Manju, Malleshi, Nagabushan, Jagadish, Madur Mahesh, Mallikarjun, Raju, Lakshmana, Teppanna, Durgajaru Lakshmana, Mariswamy, Nagaraj, Barmakka, Mangalamma, Renukamma, Savithramma, Thimmakka, Hanumakka, Hanumakka W/o. Tirukappa had formed themselves into an unlawful assembly and were abusing the complainant in foul language as and that Thippeshi had proceeded to assault him with a cart peg, on the right side of his forehead. Mahesh is said to have assaulted the complainant on his head with a cart peg Oblesh is said to have assaulted the complainant with a kanaga on his left hand, causing injuries. Accused Yekanthappa is said to have assaulted Honnappa with a kanaga on his left shoulder. Sheshappa is said to have assaulted on his left thigh. Thippeshi, Rudramuni, Hanumantha Reddy are said to have assaulted with their hands. At that time Chennamma, Hanumakka, Manjamma, Palakka, Sushilamma, Borakka, Obakka, Thippeshi are said to have come there and that accused Oblesh is said to have assaulted Chennamma on her left forehand; the accused Sheshappa is said to have assaulted Chennamma on her left shoulder and right forehand. The accused Thippeshi is said to have tugged at the sari of Chennamma and had tried to outrage her modesty, when Hanumakka, Manjamma, Palakka, Sushilamma, Borakka, Obakka went to her rescue, the accused Savithramma, Thimakka, Hanumakka, Renukamma and Bharamakka are said to have kicked and assaulted them and caused injuries. Accused Thippeshi is said to have assaulted Hanumakka with a kanaga and all of them are said to have abused the victims as, They are said have threatened their lives. On the basis of the above complaint a case was said to be registered in Crime No. 40/2006 for the offences punishable under Sections 143, 147, 148, 323, 324, 326, 504, 354, 506(2) and 307 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred to as ''I.P.C, for brevity) and Sections 3(1)(x)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the ''SC & ST Act, for brevity) and a First Information Report was said to have been submitted to the jurisdictional Court on 26.07.2006 at about 1.00 a.m. It is further disclosed that, in the course of investigation, the Investigation Officer had visited the scene of offence and had drawn up a panchanama. He is also said to have recovered incriminating materials such as cart pegs and had recorded statements of the injured witnesses and had also gathered the wound certificates of the injured and their caste certificates. Thereafter a charge sheet was said to have been filed against the accused for the offences, as stated above.

It is further revealed that in the course of investigation accused Nos. 30 to 32 were arrested and produced before the Court on 28.07.2006 and they were enlarged on bail on 03.08.2006.

Accused Nos. 1 to 29 had voluntarily surrendered before the Court on 07.09.2006 and they were enlarged on bail on the same day.

After hearing the prosecution and the counsel for the accused, charges were framed against the accused under the aforesaid sections. The accused had pleaded not guilty and claimed to be tried. On recording their plea, the prosecution had examined in all 19 witnesses and had got marked Exs. P-1 to 17 and M.Os. No. 1 to 4.

On closing the case of prosecution and the statement of accused having been recorded, the accused had denied the incriminating evidence said to have been found in the evidence of prosecution witnesses and they had also contended in their defence that the accused were followers of Ajjanaobaiah and they went to the village and had thrown stones on the houses of Seeth Rama Gouda, Yenkanthappa, Honnappa, Sheshappa and on seeing the police arriving at the spot, they had fled in their tractor and while the tractor was being driven away rashly it had turned turtle and on account of which the victims had sustained injuries and the defence witnesses D.Ws.1 to 6 were examined and portion of the statement of P.W.3 was marked as Ex. D-1. On these assertions, arguments having been heard, the court below had framed the following points for consideration -

"1. Whether the prosecution proves beyond all reasonable doubt that on 25.07.2006 at about 10.30 a.m. within the jurisdiction of Gudekote police station, in front of house of P.W.3 Honnappa situated at Hulikunte village,

a) Accused formed themselves into an unlawful assembly with common object to commit offence of rioting committed rioting by holding deadly weapons like cart pegs?

b) Abused the complainant as, with a view to defame a member of scheduled caste?

c) Accused No. 30 to 32 i.e., J. Krishnappa, Kanakappanavara Bheemappa, Venkatesh abetted other accused by stating that,

d) Accused No. 1 assaulted complainant P.W.14 Susilamma, P.W.7 Hanumakka, P.W.4 Thippeshi @ Thippeswamy with cart pegs and caused simple injuries, accused No. 5 assaulted P.W.5 Chennamma with cart peg, accused No. 7 assaulted P. W. 8 Boramma @ Borakka, accused No. 15 assaulted complainant, P. W.6 Palakka and caused simple injuries.

e) Accused No. 6 assaulted P.W.3 Honnappa on hands, near left thigh, accused No. 8 to 10 assaulted P.W.3 with hands on his person, accused No. 23 to 29 assaulted P.W.14 Sushilamma, P.W.6 Palakka, P.W.7Hanumakka, P.W.8 Boramma with hands.

f) Accused No. 5 assaulted with cart peg on his left forearm, accused No. 7 assaulted P. W.3 Honnappa who came to rescue of complainant with cart peg on his left shoulder and Obakka P.W.17 with cart peg on her left forearm and attempted to commit murder of P.W.1, 3 and 17?

g) Accused gave threat to the life of complainant with dire consequences stating that,

Thereby committed the offences punishable under Sections 143, 147, 148, 114, 324 or 326, 323, 307 and 506 read with Section 149 of IPC?

What Order?"

The points at No. (a), (b) and (d) as well as point No. (e) were answered partly in the affirmative and point No. (c), (f) and (g) were answered in the negative. The accused were convicted and sentenced to pay a fine of Rs. 500/- each, for the offences punishable under Sections 143, 147 and 148 of I.P.C. and accused Nos. 1, 5, 6 and 7 were sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs. 10,000/- each for the offence punishable under Section 326 of I.P.C. and were sentenced to pay fine of Rs. 2,000/- each for the offence punishable under Section 324 of I.P.C. Apart from payment of fine, accused Nos. 2, 8 to 12 and 15 were sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 5,000/- each for the offence punishable under Section 326 read with Section 149 of I.P.C, and they were also sentenced to pay fine of Rs. 3,000/- each for the offence punishable under Section 324 of I.P.C. and 80% of the fine collected was to be paid to the injured, who had sustained grievous injuries, as compensation, after the appeal period was over. It is that which is under challenge in the Criminal Appeal No. 2799/2011.

The learned counsel for appellants while taking us through the record would seek to contend that it is evident that there are several contradictions as to the overt acts alleged against the appellants and the nature of injuries mentioned in the wound certificate. There is no consistency in the injuries complained of, and the injuries mentioned in the respective wound certificates. The counsel would draw attention to the evidence of P.Ws. 1, 3, 4, 5, 6, 7 to 9, 14 and 17, and would point out that the court below could not have relied on the evidence of these witnesses as they were interested witnesses, which has been brought out in the cross-examination, and therefore, reliance being placed on the evidence of such witnesses has led to a miscarriage of justice.

The court below had also failed to appreciate that there was political rivalry between the complainant''s relatives and the accused persons and this had been admitted in so many words by P.W.1 in his cross-examination. It is contended that it is also brought on record as to the previous enmity and constant festering of their rivalry, which has not been taken into account as the reason for foisting a false criminal case against the accused.

It is further emphasised that except examining the relatives of the complainant as witnesses, there are no independent witnesses, which would have brought home the charges against the appellants, and therefore, it could not be said that the prosecution had established its case beyond all reasonable doubt. The learned counsel would also point out that having regard to the large number of accused, who are alleged to have committed the offences, it is humanly impossible for the witnesses to consistently state as to how the incident had unfolded and which of the accused had committed what overt act against the alleged victims, and therefore, it is evident that the entire case has been foisted against the accused only on account of political rivalry, even though it is urged that the victims were all travelling in a tractor which had turned turtle, and therefore, they had sustained injuries.

The learned counsel would also point out that insofar as the role of the accused, which is said to be attributed on the basis of the evidence of the witnesses is as follows -

P.W.1 Umapathi had claimed that the accused No. 1 (Goudra Thippeshi @ Thippeswamy), accused No. 5 (Obalesh Tirukappa) and accused No. 15 (Maduru Mahesh) had assaulted him with cart pegs or kanagas and that he had sustained grievous injuries as per Ex. P-6. Ex. P-6 which is the wound certificate would indicate that he had suffered one grievous injury of a fracture to his left forearm.

It is pointed out that except naming the accused and claiming that they had assaulted him with kanaga, there is no specific statement against the said accused as to which of them struck him on which part of his body and who exactly had caused the grievous injury, in the said witness having suffered a fracture.

Similarly, insofar as the injured witness P.W.3 Honnappa is concerned, he had stated that accused No. 7 Ekanthappa had assaulted with a cart peg and accused No. 9 Hanumanthareddy and accused No. 10 Rudramuni had assaulted him with their hands. Though as per Ex. P-8 the wound certificate pertaining to this witness indicated that he had sustained grievous injuries, it is not clear as to who has caused the injuries especially when it is stated that accused No. 9 and 10 had assaulted the said witness with their hands. In the absence of any specific averment as to the overt act which had caused the grievous injury, the court below could not have pinned down the accused to having committed any such offence, which has caused the grievous injuries. All the accused having been lumped together, it is not possible for the Court to make an assessment as to the injuries having been caused by any particular accused in considering the degree of punishment that could be imposed, which has resulted in a miscarriage of justice.

Further insofar as P.W.4 Thippeswamy is concerned, this witness was treated as a hostile witness by the prosecution and he had stated that even accused No. 1, Goudra Thippeshi @ Thippeswamy, accused No. 7 Ekanthappa and accused No. 9 Hanumanthareddy had assaulted him with a stick and he had sustained grievous injuries. The wound certificate in respect of this witness is at Ex. P-16. Except this witness, no other witness has spoken about the assault committed by accused No. 9. The said witness having been treated as hostile, it was not open for the prosecution to have relied upon the portion of the evidence of the said witness while negating the evidence tendered by those witnesses in entirety. The court below was misled into reading of a portion of the evidence of this witness to held that the charges against the said accused had been proved in having committed the assault on the said Tippeswamy.

Insofar as P.W.5 Chennamma is concerned, this witness has turned hostile and she had stated that accused No. 5 Obalesh Tirukappa and accused No. 6 Sheshappa had assaulted her with a stick and she had sustained grievous injuries as per Ex. P-9. The learned counsel would submit that the witness having been treated as a hostile witness, it was not open for the prosecution to rely on any portion of the evidence of the said witness and the court below was therefore in error in relying upon such part of the evidence of the witness, who had turned hostile.

P.W.6 Palakka claimed that she was assaulted by accused No. 2 Goudra Prakash, accused No. 8 Thippeshi and accused No. 15 Muduru Mahesh and had sustained grievous injuries as per the wound certificate at Ex. P-7.

The learned counsel would draw attention to the circumstance that the very same accused are also shown to have assaulted the other eye-witnesses and it is not evident as to who was attacked first and who was attacked later. In the absence of which it is evident that the entire case has been foisted against the accused on false allegations and it is also highlighted that when such assaults take place by a large number of people it would be next to impossible for any witness to recount with accuracy, as to how the events unrolled when the attack takes place in a swift and concerted move. It is also not clear as to how the witnesses could with in any degree of accuracy name each of the accused when there were almost 32 people constituting the unlawful assembly in attacking the alleged victims.

Similarly P.W.7 Hanmakka has stated as to the assault by accused No. 1 Goudra Thippeshi @ Thippeswamy, accused No. 11 Manju @ Manjunath and accused No. 12 Malleshi with sticks and sustained simple injury as per Ex. P-10. Ex. P-10 would only indicate that when she had claimed to have suffered some tenderness over left wrist joint and right wrist joint, cut lacerated wound of 4 x 2 cms. Over left parietal area of scalp and as can be seen from Ex. P-10 the injuries were not as a result of any attack by men with sticks and could not have related to any such injuries having been caused by the alleged accused.

P.W.8 Boramma had only claimed assault by accused No. 7 Ekanthappa with a stick and she had sustained a grievous injury as per Ex. P-13. Accused No. 7 Ekanthappa is shown to have attacked three persons namely P.Ws. 3, 4 and 6, and hence, it is therefore evident that if the case of prosecution is to be accepted that the accused were all milling around and were assaulting the alleged victims indiscriminately, and therefore, there would have been much movement rendering it impossible for any injured witness to be able to recount, in the manner that they have, the manner in which they had been assaulted and it is clearly a case of the prosecution seeking to foist a false case against the accused.

P.W.9 Manjamma has stated about the assault by accused No. 25 Renukamma, accused No. 26 Savitramma, accused No. 27 Thimakka and accused No. 28 Hanumakka, but had not sustained any injury at all as per Ex. P-5. The said accused persons have been acquitted.

If the court below did not believe that they were not involved in the incident, it is inexplicable that the Court, however, accepts the statements of witnesses as to the other accused having committed the offence. If by the token of reasoning that these accused Nos. 25 to 28 had not assaulted P.W.9, then the entire case of prosecution had to be rejected on the same token of reasoning The court below was not justified in acquitting some of the accused against whom evidence has been tendered, but convicting others against whom similar evidence has been tendered.

P.W.14 Sushilamma had turned hostile and has sustained a simple injury as per Ex. P-15. Therefore, her evidence was irrelevant as she has not named any accused. P.W.17 Obakka was said to have been assaulted by accused No. 25 Renukamma, accused No. 26 Savitramma, accused No. 27 Thimakka, accused No. 28 Hanumakka and accused No. 29 Hanumakka, with their hands and she has sustained grievous injuries as per Ex. P-14. Therefore, the court again having acquitted the said accused would lead to a presumption that the Court has partially accepted the evidence of the witnesses in convicting some of the accused and had discarded the evidence by the same witnesses in respect of other accused. This is an incongruity, which cannot be reconciled and the court below therefore, was not justified in holding that the prosecution had established its case beyond all reasonable doubt and having imposed a severe punishment against the large number of accused when the entire case sought to be made out against the accused was doubtful and especially when such a large number of people were involved, and therefore, seeks acquittal of the accused.

It is also contended by the learned counsel that having regard to the circumstances of the case even if the charges are to held as proved, it should be noticed that the prosecution having invoked Section 326 of I.P.C. in claiming that offences having been committed are punishable under the said Section. It is evident that there was political rivalry and the weapons that were said to be used were mere cart pegs, which is a clear indication that there was no intention to commit murder, and hence, the mechanical invocation of Section 326 of I.P.C. has led the Court into believing that the punishment attracted was of a higher degree, and hence, the appellants were not entitled to any leniency in imposing the sentence and if the case is considered as one under Section 325 of I.P.C. the degree of punishment would be considerably lesser, which the court below has totally overlooked in dealing with the matter.

Further it is pointed out that the incident was alleged to have been committed on 25.07.2006. Whereas, the medical certificates and the wound certificates produced in support of the alleged injuries suffered by each of the injured witnesses at Exs. P-10, 13 to 16 are dated 19.10.2006 and Exs. P-5 to 9 are dated 10.10.2006 and it is pointed out that the wound certificates having been issued after three months of the incident would render them doubtful and it is apparent that they are got up documents to foist a false case against the accused.

On the other hand, the learned Additional State Public Prosecutor would seek to justify the judgment of the court below to the extent of having found that the acts had been committed by the accused. But, however, would submit that the punishment imposed is very lenient and having regard to the grievous nature of the injuries caused to several witnesses using lethal weapons, it is necessary that the punishment be enhanced substantially, especially when the accused have mercilessly attacked a woman and have caused grievous injuries to various parts of her body, and therefore, these accused having attacked an unarmed woman do not warrant any mercy or consideration and the punishment imposed is very lenient and ought to be enhanced substantially to the maximum punishment. Insofar as the contention that the evidence tendered by hostile witnesses, who have been treated as hostile cannot be relied upon, is an incorrect statement.

It is pointed out from Section 154 of the Indian Evidence Act, 1872 that it is open for the prosecution to rely upon that portion of the evidence of hostile witnesses to the extent it would support the case of prosecution and the contention that if the witness has turned hostile, the entire evidence of such witness has to be discarded is an incorrect proposition of law.

In this regard, the learned Additional State Public Prosecutor would place reliance on atleast two judgments of the Supreme Court in Mohan Lal and Another Vs. State of Punjab, AIR 2013 SC 2408 : (2013) CriLJ 3265 : (2013) 3 JCC 1584 : (2013) 10 JT 384 : (2013) 2 RCR(Criminal) 793 : (2013) 6 SCALE 8 : (2013) 12 SCC 519 : (2013) AIRSCW 3523 and Ramesh Harijan Vs. State of U.P., AIR 2012 SC 1979 : (2012) CriLJ 2914 : (2012) 5 SCALE 561 : (2012) 5 SCC 777 : (2012) AIRSCW 2990 : (2012) 4 Supreme 121 , wherein it has been laid down that the evidence of a hostile witness cannot be discarded as a whole, any relevant portion thereof, which are permissible in law can be used by the prosecution or the defence and that statement of hostile witnesses can be examined to the extent that it supports the case of prosecution.

The learned Additional State Public Prosecutor would submit that there are other innumerable cases, where this proposition has been reiterated. Insofar as the further contention that the wound certificates and medical certificates on record, are issued much after the incident, and therefore, are unreliable documents is also not correct for the reason that the Medical Practitioners, who had treated the accused respectively have tendered evidence as P.Ws.11 and 15. They have been examined to relate as to the treatment they have provided to each of the injured witnesses. They have clearly indicated the treatment they have provided to each of the injured witnesses and the medical certificates having been issued later does not lead to a presumption that they are false and got up documents. The practice, generally has been adopted having regard to the pressure of work which the Government Hospitals and Doctors undergo, and therefore, the delay in issuance of such certificates ought not to have been viewed with any suspicion.

In the above background, on a close examination of the record and the reasoning of the court below, it is evident that the accused were a large number of persons, who are said to have attacked several persons apart from the injured witnesses, who have tendered their evidence. It is also established from the record that the injured victims have suffered grievous injuries, in that P.W.1, 3, 4, 5, 6, 8 and 17 have suffered grievous injuries. This is established by medical evidence. The said witnesses have also identified and have stated the respective accused, who have attacked them. It is on this basis that the Court has found the named accused have been guilty of having committed offences as alleged. Though there is substance in the contention of the learned counsel for the appellant in Crl. A. No. 2799/2011 when it is sought to be pointed out that a large group of people, who are said to be 32 in number, having descended on the victims and having carried out a mass attack there would be much movement and in the scuffle that would ensue, which would again be of a momentary nature and would not occur in slow motion. It is not easy for each of the injured witnesses to identify and relate the exact overt acts committed by each of the accused. Therefore, it is fascinating that each of the injured witnesses has named particular accused and have attributed overt acts to each of them in claiming as to the manner in which the injuries have occurred. However, since there is consistency in their evidence and the said witnesses having been tested in cross-examination, the court below having proceeded to accept the allegations and holding that the case has been proved against the named accused beyond all reasonable doubt, cannot be lightly faulted especially having regard to the grievous injuries suffered by the above named injured victims. The motive alleged against the accused obviously is on account of political or other rivalry for otherwise the accused to form an unlawful assembly and to attack the victims in a concerted group is not explained. If this were so and having regard to the weapons said to have been used in the assault, it could decide that there was intention to commit murder and the prosecution having invoked Section 326 of I.P.C. was out of place.

As rightly contended by the learned counsel for appellants, it was more appropriate if the intention of the accused was treated as not falling under Section 326 of I.P.C, but falling under Section 325 of I.P.C, in which event, in assessing the degree of punishment, the court below would not have been guided by the severe punishment prescribed in respect of the offence punishable under Section 326 of I.P.C. This was obviously a case falling under Section 325 of I.P.C. and if the maximum punishment for an offence under Section 325 of I.P.C. would extend upto seven years, the measure of punishment that could be imposed would get drastically reduced. The Court below having proceeded on the presumption that it was an offence punishable under Section 326 of I.P.C. has led the Court imposing a punishment of three years rigorous imprisonment to the appellant accused and if it is treated as one under Section 325 of I.P.C, it would proportionately get reduced. Consequently, we are of the opinion that the punishment imposed by the court below having regard to the maximum punishment prescribed under Section 324 or 326 of I.P.C. was three years, it can be proportionately reduced to one year. Insofar as accused Nos. 1, 5 to 7 are concerned, it can be proportionately reduced to one year of rigorous imprisonment and insofar as accused Nos. 2, 8 to 12 and 15 are concerned, the punishment imposed is of one year, which can be reduced to four months. Insofar as the fine amount is concerned, it would necessarily have to be enhanced by virtue of the punishment of imprisonment being reduced, for otherwise, the accused should not have the impression that they can get away with such acts of violence, and therefore, the punishment of fine would have to be enhanced from Rs. 10,000/- to Rs. 30,000/- each, insofar as accused Nos. 1, 5 to 7 are concerned and the punishment of fine insofar as other accused Nos. 2, 8 to 12 and 15 is concerned, it shall be enhanced from Rs. 5,000/- to Rs. 15,000/- each. The additional fine, to be paid, shall be tendered to the injured witnesses, who have suffered grievous injuries, as compensation, on such payment.

Insofar as the contention that the prosecution cannot rely upon the evidence of hostile witnesses is concerned, as rightly pointed out by the Additional State Public Prosecutor, the law as laid down by the Honourable Supreme Court in the aforesaid decisions is patent and it is open for the prosecution to rely on such portions of the evidence which would support its case. The further allegation that the medical certificates or wound certificates were doctored and were produced to suit the case of the prosecution, is also not tenable as it is found as a general practice that on account of pressure of work these certificates are normally produced much after the incident and much after the victims have suffered their injuries, and hence, there is no substance in this contention. Consequently, the appeal in Crl. A. No. 2799/2011 is allowed in part and the punishment being modified in terms as above and that, if there is default in payment of the additional fine now imposed, the very default clause imposed by the trial Court would operate, proportionately. In that, should the accused No. 1, 5, 6 and 7 default in payment of the fine they shall undergo one month''s simple imprisonment, and should the accused No. 2, 8 to 12 and 15 default in the payment of fine they shall suffer one month''s simple imprisonment.

Insofar as appeal in Crl. A. No. 2602/2012 is concerned, the same is dismissed in view of the appeal by the appellants accused being allowed in part.

The conviction of the named accused under Section 324 of I.P.C. is set aside, in view of the opinion formed by this Court that the offence committed were rather punishable under Section 325 of I.P.C.