Lokesha vs State of Karnataka

Anand Byrareddy, J.—The facts of the case are as follows:

It was alleged that the present appellants (Accused no. 3 and 4, respectively) along with eight others, had formed themselves into an unlawful assembly and arming themselves with deadly weapons, as on 21.3.2003, at about 10 PM, had gathered in front of the house of Thimmaiah (PW. 3) and had abused him in foul and derogatory language with reference to his caste and that the first appellant herein had assaulted the said Thimmaiah with a long bladed machete, while the second appellant had assaulted with a machete, on his right forearm, right ribcage, right arm, on his back, stomach and neck. When one Gangalakshmamma (PW. 4) is said to have rushed to his rescue, the second appellant is said to swung at her with his weapon causing grievous hurt on her elbow. Accused no. 3, 9 and 10 are said to have slapped one Deveraju (PW. 7). The second appellant is also said to have caused a cut on the hand of one Venkatesh (PW. 5). And all the accused are said to have abused the aforesaid persons in derogatory language with reference to their caste, a Scheduled caste.

On the basis of the complaint, after further investigation and on the charge sheet being placed before it, the Court of Magistrate is said to have committed the matter to the Sessions court. Charges were thereafter framed for offences punishable under Sections 144, 148 and 307 of the Indian Penal Code, 1860 (Hereinafter referred to as the ''IPC, for brevity) read with Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Hereinafter referred to as the ''SC/ST Act'', for brevity), to which the accused had pleaded not guilty and had claimed to be tried.

The prosecution having tendered evidence in support of the charges, had examined 12 witnesses and marked several exhibits, in addition to producing several material objects. Thereafter, the statements of the accused were recorded u/s 313 of the'' Code of Criminal Procedure, 1973, (Hereinafter referred to as the ''CrPC for brevity).

The Trial Court then framed the following points for consideration:

"1. Is it proved that P.Ws. 3 to 5 an d7 belong to a scheduled caste and that the accused do not belong to any scheduled caste or scheduled tribe?

Is it further proved that P.Ws. 3 to 5 and 7 were hurt on 21.3.2003 at 10 PM as alleged?

Is it further made out that the accused were or any of them was responsible for the said witnesses suffering such hurt?

Is it proved that A1 to A4 and 6 to 8 intended to kill P.Ws. 3 to 5 and 7?

Is it further proved that accused 1 to 4 and 6 to 8 humiliated P.Ws. 3 to 5 and 7 with reference to their caste?

Is it further established that the accused committed the said acts in prosecution of the common object of the unlawful assembly of which they were members?"

Points 1 and 2 were answered in the affirmative. Point no. 3 was answered in the affirmative as regards Accused no. 3 and 4 (the appellants). And all the other points were answered in the negative. On the said findings the appellants were sentenced to rigorous imprisonment for three years and to pay a fine of Rs. 2,000/-. It is that which is under challenge.

At the outset, it is stated by the learned counsel that the question of juvenility of the second appellant would have to held in his favour as documents have now been produced to support the contention that the said appellant had not completed 18 years of age as on the date of the alleged incident. The learned State Public Prosecutor would concede that the documents produced have been verified and found to be genuine. It is evident from the SSL. C marks card of the second appellant, that is submitted, that he had not completed 18 years of age as on the date of the alleged incident. In that, the said appellant''s date of birth is shown as 21.7.1985 and the date of the incident is said to be 21.3.2003. Therefore, the said appellant would have been aged about 17 years and 8 months as on that date. In this view of the matter, the impugned Judgment would have no effect in so far as the said appellant is concerned, in terms of Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (Hereinafter referred to as the ''CPC Act, for brevity). The said appellant be produced before the Juvenile Justice Board to be dealt with in accordance with law.

In so far as the findings against the first appellant are concerned, it is contended that though in all, ten accused were charge-sheeted and seven accused were tried for offences u/s 143, 147, 148, 323, 324, 326, 307 read with 149 of the Indian Penal Code, 1860 (Hereinafter referred to as the ''IPC'', for brevity) and u/s 3(i)(x) and (xi) of the SC/ST Act, accused No. 1, 2 and 6 to 8 were acquitted and the Trial Court has committed a serious error in recording conviction against these two appellants.

It is contended that on 21.3.2003 at 10 p.m. on the road near the house of complainant at Nagegowdana Palya, the accused had formed an unlawful assembly armed with clubs, chopper and machete and assaulted PW. 3 to PW. 5 and caused grievous injuries. In support of this allegation the Prosecution examined PW. 3 Thimmappa, the Complainant, PW. 4 Smt. Gangalakshmamma and PW. 5 Venkatesh and PW. 7 Devaraj as eye witnesses to the incident and all these witnesses were of the same family and they were all highly inimical to the accused.

Further, it is contended that it is admitted by PW. 3 to PW. 5 that they were working in a quarry run by one Nagarajaiah, an Ex. Member of the Legislative Assembly and Mr. Krishna Kumar, a Zilla Parishat member and they all belonged to the Janata Dal party and these appellants and other accused are the followers of accused No. 7, Suresh, who is the President of Village Panchayat of Adonahalli village and who belonged to the Congress party. Thus, there is partisanship between the prosecution witnesses PWs. 3 to 8 and the accused persons, resulting in the witnesses deposing falsely against the appellants.

Further, the Trial Court has acquitted five of the accused, who are alleged to have played a major role as per the version of alleged eye witnesses PWs. 3 to 5. The allegation against these appellants is also based on the same evidence and there is no justification in not giving the benefit of doubt to these appellants, as well.

Further, it is contended that the main infirmities in the evidence of PWs. 3 to 5, are that at the earliest point of time, when they were taken to Kunigal Government Hospital for treatment, before the doctor while disclosing the history, they had not stated that these appellants had assaulted them. This fact is admitted by PW. 3 to 5 and Doctor PW. 9 Dr. K. Basavaraj. Therefore, when PW. 3 to 5 were in Kunigal hospital and taking treatment, the then MLA Mr. Nagarajaiah and his brothers Krishnakumar and Shivanna are said to have reached the hospital and is, at their instigation, that the accused, who were inimical to them, had given an oral complaint and therefore, the complaint is concocted.

PW-9, Dr. K. Basavaraj, who had examined and treated PWs-3 to 5 and issued Wound Certificates as per Exhibits P.7 to P.9 has admitted that the injuries sustained by PWs. 3 to 5 could be caused by explosion in a quarry.

PW-3, has admitted in his evidence that he and PW-5 were working in the quarry of Mr. Nagarajaiah, Krishna Kumar and Mr. Shivanna and in that process, they might have sustained injuries and this possibility is admitted by Doctor PW-9. Therefore, this version is more probable and acceptable in nature.

The evidence of PWs. 3 to 5 is that accused no. 1 came and took PW. 3 out of the house and then accused Nos. 1, 2, 6 to 8, who were all armed with clubs, assaulted the complainant and other witnesses PWs. 4 and 5. As per the opinion of the doctor, material objects, MOs. 8 to 12 (Clubs) could also cause injuries sustained by PWs. 3 to 5. Therefore, accused No. 1, 2 and 6 to 8 have been acquitted by the trial Court. There is no such evidence against the appellants. The only evidence against the first appellant Lokesha is that of PW. 3 Thimmaiah. PW. 4 Smt. Gangalakshmamma and PW. 5 Venkatesha, who have not deposed anything against the first appellant.

The evidence of PWs. 3 to 5 is glaringly inconsistent with the medical evidence, because there are no corresponding injuries alleged to have been caused by the appellants with long and chopper.

The doctor, PW-9, has not stated that long, MO. 11 and Chopper, MO. 12 could cause any of the lacerated injuries. The nature of injuries noted by the doctor on the person of the injured, in all probability, could have caused while working in quarry, due to explosion and splitting of stone pieces.

It is contended that taking advantage of the explosion in the quarry, whereby PWs. 3 to 5 were injured, Mr. Nagarajaiah, Mr. Krishna Kumar and Mr. Shivanna have lodged a false complaint to wreak vengeance against the accused and therefore, the entire case is false and concocted in nature.

PW-9, the doctor, has not given any opinion as to the nature of injuries whether they were grievous or simple at the first instance. Only at a later stage, an opinion is given without any basis, because no X-ray was taken and no Report from a Radiologist was obtained. Therefore, there is no definite and convincing material to prove that PWs. 3 to 5 have sustained any grievous injury. Therefore, the opinion of doctor PW-9 as to the nature of injuries is baseless and therefore, the trial court has committed a serious error in recording conviction for the offence u/s 326 of IPC.

Further, it is contended that to record conviction for the offence u/s 326 of IPC, the nature of weapon used must be deadly and it must be a cutting weapon. In this case the nature of injuries caused does not reveal using of any cutting object and therefore, the conviction recorded for the offence u/s 326 of IPC is bad in law.

It is contended that as per the allegation of the prosecution, the incident occurred on a road in a village surrounded by number of residential houses and the inmates of those houses had come out and witnessed the incident. But, none of these independent and material witnesses are examined. And only interested, inimical and partisan witnesses of one family are examined and those witnesses'' version are also contrary to the medical evidence and surrounding circumstances and under such circumstances, the recording of conviction against the appellants is totally illegal and perverse.

The evidence of PWs. 3 to 5 are proved to be omissions and these omissions are proved through the investigation officer and therefore, the evidence of PW. 3 to 5 and PW. 7 suffers from irreconcilable contradictions and material omissions. Therefore, their evidence is unworthy of credit. The Trial Court has committed a serious error in relying their evidence.

It is further contended that the allegation is that about three days prior to the incident, accused No. 4 Harish and accused No. 5 Vishnu had beat the dog of PW-3 and due to which, there was a quarrel. Therefore, the appellants have been falsely implicated in the case.

PWs. 3 to 8 have stated that the weapons allegedly used for assault were thrown at the spot and therefore the recovery of weapons shown at the instance of appellants exhibit an unfair investigation. Therefore, it is evident that the investigation is carried out as per the instructions of political leaders Mr. Nagarajaiah, Mr. Krishna Kumar and Mr. Shivanna in order to falsely implicate the accused.

The learned State Public Prosecutor however, seeks to justify the impugned judgment in so far as the first appellant is concerned.

Given the several infirmities that are highlighted by the learned counsel for the appellants, the above circumstances, as canvassed by the appellants, are particularly inexplicable and cast a serious doubt as to the occurrence of the incident in the manner as canvassed by the prosecution and therefore, it cannot be said that the prosecution had established its case against the first appellant beyond all reasonable doubt.

Insofar as the second appellant is concerned, as could be seen from the SSLC Marks card, as contended by the learned Counsel for the appellants, the second appellant was aged 17 years 8 months, as on the date of the incident and therefore, the impugned judgment would have no effect in so far as appellant no. 2 is concerned, in terms of Section 7A of the CPC Act and the said appellant is to be produced before the Juvenile Justice Board for further course of action, in accordance with law.

Insofar as the first appellant is concerned, though ten accused were charge-sheeted, seven were tried for offences punishable under Sections 143, 147, 148.. 323, 324, 326, 307 read with 149 of the IPC and u/s 3(i)(x) and (xi) of the SC/ST Act and accused nos. 1, 2 and 6 to 8 were acquitted.

Further, the eye witnesses for the prosecution, PW. 3 Thimmappa, PW. 4 Gangalakshmamma, PW. 5 Venkatesh, PW. 7 Devaraj are from the same family and are highly inimical to the accused-appellants.

PW. 3 to PW. 5 have admitted that they were working in a quarry run by Sri. Nagarajaiah, an Ex-Member of the Legislative Assembly and Mr. Krishna Kumar, a Zilla Parishat member and they all belonged to Janata Dal party and the appellants are the followers of accused No. 7, Suresh, who is the President of the Village Panchayat of Adonahalli village and belonged to the Congress party. Thus, there was partisanship between the prosecution witnesses PWs. 3 to 8 and the accused person, resulting in the witnesses deposing false evidence against the appellants.

Further, there are infirmities in the evidence of PWs. 3 to 5. In that, at the earliest point of time, when they were taken to Kunigal Government Hospital, they had not disclosed that the appellants had assaulted them. This fact is admitted by PWs. 3 to 5 and PW. 9, the doctor.

The evidence of PW. 3 is that he was engaged in quarry work on the date of the incident and that he might have sustained injuries. This possibility is also admitted by the doctor PW 9.

PW. 9, the doctor has not opined about the nature of the injuries and only at a later stage, an opinion is given, not based on any x-ray or radiology report.

Further, as per the provisions of section 326 IPC, the nature of a weapon used in the commission of the offence, must be deadly and it must be a cutting weapon. In the present case on hand, the nature of injuries caused does not reveal usage of any cutting or deadly weapon.

Further, even though the incident had occurred on a road, in a village and many people had witnessed the incident, only interested, inimical and partisan witnesses of one family have been examined and the evidence those witnesses are contrary to the medical evidence.

In the result, the appeal is allowed in so far as the first appellant is concerned and the judgment of the trial court is set aside. The appellant is acquitted. The fine amount if any paid by the appellant shall be refunded to him. The bail bond furnished shall stand cancelled.

The impugned judgment has no effect in so far as the second appellant is concerned having regard to the finding of this court, as recorded above, the said appellant was a juvenile as on the date of the alleged incident. He shall hence be notified to appear before the competent Juvenile Justice Board, in due course, to face further proceedings, if any. The bail bond furnished by the said appellant stands cancelled. The fine amount, if any, paid shall be refunded to him.