Mahadevaiah and Others vs State of Karnataka

Budihal R.B., J.—This appeal is preferred by appellants/accused Nos. 1 and 2 being aggrieved by judgment and order of conviction and sentence dated 30.04.2010 passed by learned Presiding Officer, Fast Track Court-IV Mysore in S.C. No. 174/2005.

The appellants challenged the judgment of the trial Court on the grounds that it is against law, procedure, facts and probabilities of the case. The Court below erred in believing the uncorroborated version of prosecution witnesses. There is an apparent error committed by the Court below in overlooking the major discrepancies occurred in the evidence of witnesses, which disprove the prosecution case and against the appellants or at least it is doubtful. Learned Trial Judge has failed to understand the ingredient of Section 324 of IPC and wrongly came to the conclusion that the evidence is sufficient to hold that appellants are guilty of the offence punishable under Section 324 of IPC. The learned Trial Judge ought to have acquitted the appellants since prosecution has failed to prove the origin of the case, so also the motive. It is a case and counter-case. Appellants in this case are witnesses in S.C. No. 169/2003, where PWs-1 and 3 herein and other persons are accused for the offence punishable under Section 307 read with Section 34 of IPC. Due to the assault made by the accused in the said case appellant No. 2 herein became mentally unsound person, the learned trial Judge failed to appreciate the same. Whole evidence has been wrongly appreciated by the learned Trial Judge which caused miscarriage of justice. The sentence imposed is too harsh. Hence, sought to allow the appeal and to acquit the accused.

Heard the arguments of learned counsel appearing for the appellants and the learned High Court Government Pleader appearing for respondent-State.

Learned counsel appearing for the appellants submitted that appellant No. 2 suffered grievous injuries and appellant No. 1 has also suffered injuries. PWs-1 to 4 are the eye-witnesses. He has also submitted that no finding is recorded as to which party is the aggressor. He has further submitted that though it is the prosecution case that accused assaulted the injured with reaper patti, same was not produced before the Court. Even with regards to wicket, there is a discrepancy in the evidence of prosecution witnesses. Spot is not proved with cogent evidence and there are contradictions in the evidence of prosecution witnesses. Injuries on appellant No. 2 are not explained by the prosecution. Benefit of Probation of Offenders Act may be provided to the accused. He has also submitted that prosecution failed to prove the charges against the appellants beyond reasonable doubt. Hence, submitted to allow the appeal and to set-aside the judgment and order under appeal.

In support of his arguments learned counsel for the appellants has relied upon the following decisions:

i. In the case of Dr. Mohammad Khalil Chisti Vs. State of Rajasthan and Others,

ii. Abdul Majid Sab and Others Vs. State of Karnataka, .

iii. Rajbir Vs. State of Haryana, .

Per contra, learned High Court Government Pleader has submitted that incident and quarrel between the two groups has been admitted. Looking to the case and counter case, presence of appellants at the spot is also admitted. He has submitted that the defence of the accused that the other persons, who gathered were assaulted the accused is not supported by any material. He has submitted that evidence of prosecution witnesses is also supported by the evidence PW-6/Dr.Ashok Gupta. The evidence of prosecution witnesses with regards to injuries sustained by the witnesses is supported by evidence of PW-6. Prosecution has satisfactorily established that appellants caused injuries by using M.O. 1. Hence, he has submitted that Trial Court has rightly appreciated the materials and convicted the appellants. Hence, submitted that there is no merit in the appeal and same may be dismissed.

Let me examine the materials produced in the case before the Trial Court i.e. both oral and documentary to ascertain whether there is a case and counter-case. One Siddalingaswamy is the complainant in this case. Perusing the FIR registered in Crime No. 1/2002 marked as per Ex. P-13, the date of incident is 1.1.2002 and the time of incident is shown as 00.05 hrs. I have also perused the complaint, it is mentioned that complainant, his mother-in-law. Devamma and his son Premkumar, sister-in-law Ratnamma and Shivaraju are also residing with him. In connection with taking of water earlier there was enmity between complainant''s family and the family of the accused. On 01.01.2002 as it was New Year''s Day, at about 00.05 hrs. Mahesh/accused No. 2 was assaulting a boy Sunil as the boys were celebrating New Year''s day by bursting the crackers. Hence, complainant went there to pacify the quarrel, at that time Mahadevaiah/accused No. 1 and his son Mahesh/accused No. 2, all of a sudden fell on him and accused No. 1 assaulted him with reaper patti and when complainant''s son Premkumar came to pacify the quarrel accused No. 2 assaulted him with the wicket on the left side of his head with left hand and caused bleeding injuries and accused No. 1 has also assaulted Devamma with reaper patti and caused the injuries.

I have also perused the FIR in Crl. A. No. 522/2010, which was registered in Crime No. 2/2002, wherein Premkumar, the son of complainant, Siddalingaswamy/complainant, Shivakumar and Shivakumari have been shown as accused persons for the alleged offence punishable under Section 307 read with Section 34 of I.P.C. Perusing the date of incident even in this crime also it is mentioned as 01.01.2002 and time was at 00.05 a.m. Mahadevaiah i.e., accused No. 1 herein is the complainant in the said Crime No. 2/2002. Looking to these materials they clearly shows that the incident in respect of Crime No. 1/2002 and 2/2002 of Nazarabad Police Station took place at the same time and on the same date.

I have also perused evidence of PW-6/Dr. Ashok Gupta, who has been examined before FTC-IV Mysore. PW-6 has deposed in his evidence in the examination in chief that in the year 2002 he was working as Medical Officer in K.R. Hospital, Mysore. On 1.1.2002 at 1.00 hrs when he was working in the emergency ward as Medical Officer, Siddalingaswamy, Premkumar and Smt. Devamma were brought for treatment (Siddalingswamy and Premkumar are the accused in S.C. 169/2003). He examined all the three and noticed the injuries and issued the injury certificates as per Ex. P-10, P-11 and P-12 and his signatures are P-10a, P-11a and P-12a. Injuries sustained by the above said three injured are simple in nature. He has also stated the injuries sustained by Premkumar can be caused by the assault with a weapon like M.O. 1/Club. In the cross-examination PW-6 has deposed that on the same day he has also given the First Aid treatment to the accused persons present before the Court, i.e., A-1/Mahadevaiah and A-2/Mahesh.

In S.C. No. 169/2003 (Crl. A. No. 522/2010) also the Dr. Ashok Gupta has been examined as PW-11, wherein he has deposed that on 1.1.2002 in the midnight at 12.45. a.m. he examined one lady by name Uma, who was brought by P.C. No. 131 of Nazarbad P.S. with a history of assault by Siddalingaswamy and others. He has noticed lacerated injury on her and issued the wound certificate as per Ex. P-21 and his signature is P-21b. On the same day he examined one Mahadevakh/accused No. 1, who was brought by PC-131 of Nazarbad P.S. with the same history and noticed two lacerated injuries and issued the injury certificate as per Ex. P-19 and his signature is P-19b. On the same day he examined Mahesh Kumar/accused No. 2, who was brought by P.C. No. 131 of Nazarbad P.S. with the same history and noticed two lacerated injuries and C.T. Scanning of the brain showed resolving right temporal contusion with fracture of right temporal brain, patient was referred to NIMHANS at Bangalore and in his opinion he has opined that the second injury sustained by Mahesh is grievous in nature. Ex. P-20 is the wound certificate and P-20b is his signature.

Another doctor, Dr. Ravishankar Pandey has been examined as PW-12 in S.C. No. 169/2003 (Crl. A. 522/2010), wherein he has deposed that he has been working as Professor in Psychiatry at NIMHANS since 8 years. A patient by name Mahesh Kumar, accused No. 2, 19 years of age was admitted at NIMHANS on 29.08.2002 and discharged on 8.10.2002, again he was admitted on 17.12.2004 and discharged on 13.1.2005. Patient was admitted with a history of abnormal behavior, decreased sleep, irritability, talking to self and smiling to self. History of assault was given as 1.1.2002 at the time of admission. History was furnished by the father of the patient that patient was assaulted by rival members in the same locality over a dispute.

I have also perused the oral evidence of accused persons i.e., accused No. 1/Mahadevaiah and accused No. 2/Mahesh Kumar, (who were examined as PW-1 and PW-14 in Crl. A. 522/2010) and also the evidence of other witnesses examined in the case, so also I have perused the oral evidence of PW-1/Siddalingaswamy, PW-2/Smt. Devamma, PW-3/Premkumar (PWs-1 and 3 are the accused in Crl. A. 522/2010 and PW-2 Devamma is injured in the said appeal).

Perusing the evidence of these witnesses, they clearly shows that, accused Nos. 1 and 2 in both the criminal appeals have sustained injuries. Perusing the oral as well as documentary evidence, even one Smt. Uma W/o. Mahadevaiah/accused No. 1 and one Smt. Devamma, mother-in-law of complainant Siddalingaswamy, who is accused No. 2 in another case, also sustained injuries in the same incident.

So far as Shivakumar S/o. Siddalingswamy, Shivakumari @ Shivamma W/o. Siddalingaswamy, who are accused Nos. 3 and 4 in Crl. A. 522/2010, the evidence of accused No. 1/Mahadevaiah, (PW-1 in Crl. A. 522/2010) in the examination in chief shows that, on the date of incident when Prem Kumar and Shivakumar, (accused Nos. 1 and 3 in Crl. A. 522/2010) were bursting the crackers at about 12.05 hrs. in front of house of accused No. 1/Mahdevaiah (PW-1 in Crl. A. 522/2010) and as the child of Gayathri, grand daughter of Mahadevaiah, was weeping because of sound of cracker''s., Mahadevaiah opening the window of his house told Prem Kumar and Shivakumar not to burst the crackers, even then they did not stop and continued to burst more crackers. Then Mahesh Kumar came out and asked them to go away from the said-place, they in turn told to Mahesh Kumar that for the New year''s day they are bursting the same and who is he to ask the same, and there were exchange of words between them. Mahadevaiah came out of the house and at that time Siddalingaswamy (accused No. 2 in Crl. A. 522/2010) brought the macchu and referring to accused No. 1 he was uttering to finish off accused No. 1. On that day and Premkumar S/o. Siddalingaswamy (accused No. 1 in Crl. A. 522/2010) took the macchu from the hand of his father and assaulted Mahadevaiah with the macchu on his head and Siddalingswamy assaulted Mahadevaiah with reaper patti on the right side of waist portion and to both the upper limbs and caused bleeding injures and he fell down, at that time the wife of Mahadevaiah by name Uma came out of the house and at that time Prem Kumar assaulted Mahesh Kumar on his head and the ear portion with macchu and caused the bleedings injuries. Shivakumari and Shivakumar (accused Nos. 4 and 3 respectively in Crl. A. 522/2010) also assaulted Uma, the wife of Mahadevaiah, with reaper patti and macchu and caused bleeding injuries.

Looking to these evidence of prosecution witnesses, in both the Sessions Cases before the Trial Court and other materials, which I have already referred above, they clearly shows that there are case and counter cases and the incident took place on the same day at the same time, wherein accused in both the cases sustained injuries. Therefore, the arguments of learned counsel for the accused in respective criminal appeals before this Court that they have not committed the alleged offences cannot be accepted at all. When there is evidence on oath by the accused themselves, who are also the injured witnesses on both sides which fact is supported by the evidence of the doctor, it clearly shows their presence and participation in committing the offences charged against them. In view of these materials on record, the Court has to examine and find out who are the aggressors and who are the main cause for the initiation of the criminal act.

Perusing the materials, the seizure mahazar/Ex. P-15 in Crl. A. No. 522/2010 shows that as per the say of Premkumar (accused No. 1 in Crl. A. 522/2010), the panch witnesses were secured and the mahazar also shows that in the presence of panch witnesses one Mahesh and another witnesses Irraiah, Premkumar took the Police and panchas to his house and produced one macchu/M.O. 1 and also one reaper patti/M.O. 3.

Perusing Ex. P-17, Shivakumar S/o. Siddalingaswamy (accused No. 3 in Crl. A. 522/2010) gave the voluntary statement dated 14.02.2002 that if he is taken he will produce the macchu, same was recorded. Ex. P. 16 seizure mahazar shows that Shivakumar led the police and panchas i.e., Erraiah and Shivanna to his house, took out one macchu and produced the same before the police, same was seized and during the course of the trial it was marked as M.O. 2. The spot mahazar was conducted as per Ex. P-2 and it shows that the Investigating Officer has collected from the spot, blood stained mud and also sample mud in the presence of panch witnesses. The baniyan and sky colour nikker worn by accused No. 1/Mahadevaiah, (complainant in Crl. A. 522/2010) were also blood stained and same were seized under Ex. P-2 and they were marked as M.Os. 4 to M.O. 7.

M.O. 1 and 2 were seized under spot mahazar Ex. P-2 conducted in the presence of panch witnesses. The shirt worn by the complainant is M.O. 2 and one wicket, which was also having the blood stains, has been marked as M.O. 1.

The oral evidence of PW-7/M. Najundswamy Head Constable, he deposed in the examination in chief that on 1.1.2005 he was the SHO in Nazarbad Police Station and at 12.30 in the midnight injured Siddalingaswamy, Smt. Devamma and Premakumar came to the Police Station and he sent them to hospital for treatment and they came back to the Police Station at 2.30 in the night. Siddalingswamy gave the complaint. He received the complaint and registered the case in Crime No. 1/2002 and sent the FIR to the Court and also to his superior officers. His signature and endorsement on the compliant is P-1B and FIR is Ex. P-13. On the next day morning at 8. a.m. he went nearby the quarter''s 105 at Jyothinagar and conducted the spot mahazar shown by Siddalingaswamy. From the spot, he seized one reaper patti and one wicket M.O. 1. Siddalingaswamy produced his blood stained shirt. In the cross-examination, he consistently deposed about he receiving the complaint and conducting the spot mahazar and seizing the wicket and blood stained shirt of Siddalingaswamy.

Looking to these materials, it also shows the happening of the incident and the participation of injured, who are the accused persons in another case.

Looking to the oral evidence of PW-1 Siddalingaswamy in the cross examination he has deposed that Police Commissioner issued an order that on that day after 11 p.m. nobody should burst the crackers. It is no doubt true, in the further cross-examination he has deposed and denied that they came in front of house of Mahadevaiah/accused No. 1 and burst the crackers. He has denied that when accused came and enquired with them as to why they are bursting the crackers then they all together came and assaulted the complainant. He has also deposed that when the incident took place, except themselves and the accused, public were not present.

Perused the evidence of Premkumar/PW-3. In his examination in chief he has deposed that there was no order under Section 144, but Police Commissioner has issued an order that more people should not gather. He has further deposed that in order to avoid harm to the public, there was an order that in the police line that nobody should burst the crackers.

Looking to these materials on record, Siddalingaswamy, Premkumar, Shivakumar and Shivakumari (Accused Nos. 1 to 4 in Crl. A. 522/2010) are the aggressors and the incident started at their initiation because of bursting the crackers, even though there is a prohibition for bursting the crackers after 11 p.m. at the said place.

Hence, no illegality has been committed by the Trial court nor there is any perverse or capricious view in coming to such conclusion. There are no valid and justifiable grounds for this Court to interfere into the judgment and order of conviction passed by the Trial Court and the same is hereby confirmed. Hence, appeal is dismissed.

However, learned counsel for the appellants has relied upon the decision reported in Rajbir Vs. State of Haryana, requesting the Court to extend the benefit of Probation of Offenders Act to accused No. 1/Mahadevaiah, who is a Government Servant, working as Police Constable in DAR and the sentence imposed is to pay a fine of Rs. 3,000/- and in default of payment of fine amount, he has to undergo simple imprisonment for six months for the offence under Section 324 of IPC. It is not placed on record that this accused No. 1 was convicted previously in any case. Therefore, it can be said that he is a first offender and it has been already held that the accused in Crl. A. 522/2010 are the aggressors, the accused. No. 1 is entitled to be admitted to the benefits of Probation under Section 3 of Probation of Offenders Act, 1958. Taking into consideration the circumstances of the case nature of offence, while maintaining his conviction it is directed that he shall be released on probation of good conduct under Section 4 of the Act and the Chief Judicial Magistrate, Mysore before whom appellant accused No. 1 is directed to appear within 4 weeks from today shall release him after due admonition. As observed by the Hon''ble Supreme Court, it is not necessary to direct him to enter into a bond in the facts of the case and the conviction should not affect his service.