Mareppa Bellappa Sandimani and Others - Appellants @HASH State through Chittapur Police Station

Budihal R.B., J. - The judgment and order of conviction dated 13.11.2009 passed by the III Addl. Sessions Judge, Gulbarga in S.C.No. 142 of 2009 is called in question in this appeal by the appellants-accused. By the impugned judgment and order of conviction the Trial Court convicted accused Nos.1 to 7 for the offences punishable under Sections 147, 148, 448, 323, 324, 326 and 307 read with Section 149 of IPC but they are acquitted for the offences punishable under Sections 504 and 506 read with Section 149 of IPC. By the same judgment the Trial Court acquitted accused Nos.9 and 10 for all the offences with which they are charged.

The brief facts of the prosecution case as per the complaint averments that accused No. 1 being the complainant�s father�s sister�s husband and remaining accused are related to accused No. 1, since the complainant�s father had given the land bearing Sy. No. 108 of 2 to his sister and accused No. 1 was cultivating and enjoying the land long back. But after the death of complainant�s father, complainant got entered his name in the record of rights of the said land asked accused No. 1 to leave the said land to him since it belongs to his father, when accused No. 1 refused and during the dispute the accused ploughed the said land grown the toor crop and complainant got harvested the said toor crop, due to which a quarrel had taken place between the complainant and accused and due to the said grudge on 14.03.2008 at about 9:00 p.m. when the complainant, his wife and son were taking meals in their house, at that time it is alleged that accused Nos. 1 to 10 in furtherance of their common object formed into an unlawful assembly with an intention to commit rioting on the complainant, at that time they were armed with deadly weapons like axe and stones and committed house trespass by entering into the house of CW. 1 and picked up quarrel with the complainant and abused him in filthy language and intentionally insulted him and accused Nos.2, 4 and 6 have assaulted to CW. 1 with the stones on his forehead and left leg, later accused No. 3 bite on his cheek and accused Nos. 1 and 7 assaulted with hands and voluntarily caused hurt to complainant; accused No. 6 assaulted CW. 1 complainant with axe on his left elbow and caused grievous hurt to the complainant and attempted to commit his murder by assaulting with axe, at that time when the complainant�s son and wife i.e. CWs.6 and 7 came to pacify the incident, at that time accused assaulted them with hands and voluntarily caused hurt to them and after arrival of CWs.8 and 9 accused went away giving life threat to the complainant. Thereafter, injured complainant, his wife and son went to Chittapur police station and CW. 1 lodged his oral complaint, as per Ex.P 1 and on the basis of which case was registered against all the accused persons for the offences punishable under Sections 147, 148, 448, 323, 324, 326, 504, 506, 307 read with Section 149 of IPC.

After completing the investigation, the Investigating Officer tiled charge-sheet against all the accused persons for the alleged offences.

In support of this case the prosecution examined in all 12 witnesses and got marked Exs.P1 to P12 documents and 4 material Objects. On the side of defence 1 witness examined as DW. 1 and 1 document under Ex.D1 got marked.

On evaluation of the entire materials on record both oral and documentary ultimately the Trial Court convicted accused Nos. 1 to 7 for the offences which I have already mentioned and acquitted them for the offences punishable under Sections 504 and 506 of IPC and also acquitted accused Nos.9 and 10 for all the offences. Being aggrieved by the judgment and order of conviction appellants/accused Nos.l to 7 are before this Court in this appeal.

Heard the arguments of the learned counsel appearing for appellants/accused Nos. 1 to 7 and the learned Government Pleader for the respondent-State.

The learned counsel for the appellants/accused during the course of arguments made the submission that looking to the prosecution material there is no acceptable evidence placed on record by the prosecution to show that accused Nos.1 to 7 have committed alleged offence. The learned counsel taken this Court through the entire material and made the submission that PW. 1 is the complainant in this case really met with an accident and sustained injuries and taking undo advantage that there was a dispute with regard to the said landed property falsely implicated accused in this case. He also made the submission that no such incident has taken place as alleged by the prosecution. The counsel further made the submission that during the course of cross-examination PW. 1 has admitted that prior to this incident he met with an accident. He also draw attention of the Court to the evidence of the Doctor/PW. 10 wherein he has stated that regarding the history furnished firstly it was mentioned as the incident is because of the accident and the Doctor deposed it is because of mistake and subsequently the same was corrected that it is the history of assault. The learned counsel further made the submission that CWs.8 and 9 who are examined as PWs.8 and 9 are the eye-witnesses as per the case of the prosecution. But both the eye-witnesses turned hostile and not supported the case of the prosecution. The counsel further made the submission that even with regard to the evidence of injured witnesses PWs.l, 6 and 7 the evidence of these three witnesses is also not consistent and worth believable. There are inconsistencies in the evidence of these three injured witnesses. Hence, the learned counsel submitted that even though as per the case of the prosecution there are three injured witnesses but looking to the nature of the injuries said to have been sustained by the injured Smt. Kamalabai PW.7 it is only the pain that is mentioned by the doctor in the injury certificate and no visible external injuries said to have been sustained by injured Smt. Kamalabi. Hence, it is also the contention of the learned counsel for the appellants/accused that the complaint was lodged on 15.03.2008 whereas the incident has taken place on 14.03.2008. Hence, the counsel made the submission that there is a delay in lodging the complaint. He draw the attention of this Court to the evidence of PW. 1 complainant wherein he has admitted that immediately after the incident police went to the spot. Hence, it is his contention that when the police have immediately came to the spot why the complaint was not registered is not properly explained by the prosecution. Hence, it is his contention when once the police came to the spot and gathered information about the incident that itself is first information report and whatever the materials collected later and the complaint said to have been given by PW.l as per Ex.P1 is hit by Section 162 of the Cr. P.C. Hence, the learned counsel made the submission that considering the entire materials placed on record it will not inspire the confidence of the Court that the appellant/accused Nos. 1 to 7 have committed the alleged offences. Hence, he submitted to allow the appeal and to set aside the judgment and order of conviction passed by the Trial Court and the appellant/accused be acquitted from the charges.

The learned Government Pleader during the course of argument made the submission that there are three injured eye-witnesses. Even if the contention of the defence that the injured PW.1 sustained those injuries in the accident prior to this incident is accepted for the sake of appreciation, but defence has not made out a case as to how the other two injured witnesses sustained the injuries. Hence, it is his contention that the submission made by the defence side cannot be accepted. He also made further submission that there are three injured eye-witnesses and they will not leave the real culprits by substituting the accused persons. He also submitted the fact that three persons injured itself clearly goes to show the happening of the incident as narrated by PW.1 in the complaint Ex.P1. He also made the submission that three injured persons sustaining injuries is also supported by medical evidence. Doctor PW.10 who has been examined has deposed in his evidence that he examined all the three injured persons on 15.03.2008 and he issued the injury certificates as per Exs.P7, P8 and P9. Hence, the learned Government Pleader supported the judgment and order of conviction passed by the Trial Court that it is in accordance with law, no illegality has been committed by the Trial Court. Hence, there are no grounds for this Court to interfere with the judgment and order of conviction passed by the Trial Court. Hence, he submitted to dismiss the appeal.

Let me refer the relevant portions of the evidence of injured witnesses. PW.1 Hanamanth who is the complainant in this case deposed that Sy. No. 108 of 2 land measuring totally 7 acres 18 guntas came to the share of his father. His father gave the said land to accused No. 1 and his wife for cultivation. From 5 to 6 years back they requested accused No. 1 to leave their land to them for which accused No. 1 told that father of the complainant has sold the said land and last year accused No. 1 raised toor crop in the said land and as the land belongs to the complainant he himself harvested the toor crop. He further deposed that accused Nos.2 to 10 supported accused No. 1 and told him that they are supporting him and he can finish off the complainant. He further deposed that on 14.03.2008 at 9:00 p.m. himself, his wife and son were in the house taking the meals, at that time all the accused persons came to the house of the complainant and accused No. 8 was telling to finish off the complainant. All the accused persons came and fell on the complainant, accused No. 3 Siddanna brought the axe and tried to assault the complainant on his head, but the complainant brought his left hand for protecting at that time he sustained injury to his finger. Accused No. 2 Dyavanna assaulted the complainant with stone on the forehead; accused No. 5 Belleppa put the stone on the lower limb of the complainant; accused No. 6 Mallappa bite on the cheek of the complainant; accused No.7 grabble the complainant and dragged him outside; accused Nos.9 and 10 thrown the chilly powder on the face of the complainant. When accused No. 2 Dyavanna assaulted the complainant with stone on the head the complainant became unconscious. The accused have also assaulted the wife and son of the complainant with stones. At that time PWs.8 and 9 came and pacified the quarrel. In case PWs.8 and 9 did not come and pacify the quarrel, accused would have committed murder of the complainant. He witnessed the incident in the light. When the police came to the spot he was unconscious. Accused were not at the spot and he was taken to the hospital. He gave the complaint as per Ex.P1 and PI (a) is his signature. There after wards the police sent him to the hospital. At the time of the incident, he wore baniyan, lungi, they are blood stained, which were seized by the police. Three stones were seized. He has also seen the axe. The stone and the axe are seized by the police. The accused made such assault on him to bring pressure on him to give the said landed property to accused themselves. In the cross-examination he denied the suggestion that at the time of partition of landed properties Sy. No. 108 of 2 was given to accused No. 1 and his wife. He denied the suggestion that his father and father�s brothers are not the owners of Sy. No. 108 of 2. He admitted as true that accused No. 3 preferred appeal in the Assistant Commissioner Office against him. He denied suggestion that he threatened accused persons with the help of the police and harvested the crop, which was grown by accused No. 1. He admitted as true that accused No. 9 filed case against him alleging that he has assaulted to his hand. He denied the further suggestion that accused No. 6 has not at all bite on his cheek and he is deposing falsely. He denied further suggestion that he gave complaint after 2:00 p.m. on 15.03.2008. He denied suggestion that PWs.8 and 9 are his friends. He admitted as true earlier to this incident, he met with a road traffic accident. He denied suggestion that he sustained injury to his hand in the said accident He denied the suggestion that his son has not sustained any injuries.

Another injured witness i.e., is P.W.6 Sabanna, who has deposed in his evidence that about one year back at about 9.00 p.m. when himself, his father and mother were present, the incident took place. All the accused persons came to their house holding axe and sticks. Accused No. 2 assaulted with stick and accused No. 3 assaulted with axe to his father, accused Nos.9 and 10 thrown chilly powder on the complainant (P.W. 1), other accused persons assaulted his parents with stone and when he went to the rescue, accused No. 2 assaulted him on his right elbow portion with stone, accused Nos.2 and 3 assaulted his mother with hands. At the time of incident, nobody came to pacify the quarrel. He identified M.0.1-Stone and M.0.4-Axe. They took treatment in the hospital.

In the cross-examination, P.W.6 has deposed and denied the suggestion that accused No. 2 has not assaulted with stick and accused No. 3 has not assaulted with axe and he is deposing falsely. He has further denied the suggestion that accused Nos.9 and 10 have not thrown chilly powder on his father. He has further deposed that the chilly powder also fell on the ground. He admitted as true that accused No. 9 filed a case against his father.

Another injured, who is P.W.7-Kamalabi, has deposed in her evidence that about 1� year back, night at 9.00 p.m., when herself, her husband and her son were in the house, all the accused persons came holding axes and sticks and when accused No. 3 assaulting her husband with axe, his clothes became blood stained. Accused No. 3 assaulted with stick. Accused Nos.9 and 10 thrown chilly powder on the face of her husband. Accused persons assaulted her son with stone. C.Ws.8 and 9 came and pacified the quarrel. She also identified M.0.1-Stone and M.0.4-Axe.

In the cross-examination, P.W.7 shown her ignorance that the said land belonging to accused Nos.2 and 3. She admitted as true that C.Ws.8 and 9 are the friends of her husband. She denied the suggestion that none of the accused persons assaulted her husband and she is deposing falsely.

Accused Nos. 2, 3, 4, 8 and 9 have turned hostile and not supported the case of the prosecution.

P.W.10-Dr. Nanda has deposed that on 15.03.2008 at 3.00 p.m. injured by name Sabanna S/o. Hanmantha was brought by P.C.428 of Chittapur Police Station with history of accident, the patient was brought with history of assault, by mistake it was written as accident. On examination of the injured, she noticed the following injury:

i. Cut laceration over the left fore arm measuring 2.5 c.m X 5 c.m.

The above injury is simple in nature and could be caused by assault with sharp weapon. Accordingly, she issued the wound certificate, which is marked as per Ex.P-7.

On the same day with same history, she examined another injured by name Kamalabai W/o Hanmantha and noticed the following injuries on her:

i. Pain over right thigh and

ii. Pain over left back region.

The above injuries are simple in nature and could be caused by any blunt weapon. Accordingly, she issued wound certificate, which bears her signature and the same is marked at Ex.P-8.

On the same day, she examined another injured by name Hanmantha S/o Sabanna and noticed the following injuries:

i. Cut laceration over forehead i.e., frontal region of the scalp measuring about 2.5 c.m X 0.5 c.m in size

ii. � part of the finger crushed.

iii. Cut laceration over right parieto occipital region of the scalp measuring 2.9 c.m X 1.2 c.m

iv. Abrasion over the right cheeks and right big toe.

v. Profused bleeding from the wounds.

The above injuries are multiple injuries. They are grievous in nature and could be caused by assault with sharp weapon. The age of the injuries within six hours. Accordingly, she issued wound certificate, which bears her signature and the same is marked at Ex.P-9.

In the cross-examination P.W. 10 has deposed that in Ex.P-9, she had admitted the time mentioned as 3.00 p.m. Injuries mentioned in Ex.P-9 can be possible if a person falls on the hard surface like stone. There is no base for opining that the injuries are grievous injuries. She denied the suggestion that injuries mentioned in Ex.P-7 to P-9 are not possible. Axe is a sharp weapon, by assaulting with axe, there is possibility of incised wound. No incised wounds were mentioned in Ex.P-7 to P-9. In Ex.P-7 also initially he had mentioned the time as 3.00 p.m., later on it was striked and written as 3.9 a.m. He has denied the suggestion that without examining and at the request of the Police, she issued the wound certificates.

PW. 11-Sharanabasappa, the retired ASI, has deposed in his evidence that on 15.03.2008 at 2.00 a.m. Hanmanth and his wife and children came to the Police Station and gave the complaint stating that Mareppa and others assaulted them. Hanmanth gave the complaint and he reduced it in writing, which is marked as per Ex.P-1 and on the basis of it he registered the case in their Police Station Crime No. 45 of 2008 and issued the FIR so as to submit the same to his superior officers and sent the injured to the Government Hospital for treatment along with P.C.No.420. After getting the treatment, the complainant again came back to the Police Station and gave the blood stained baniyan and Dhoti and also produced the hand full size stones, which were seized in the presence of the panchas under Ex.P-3. M.Os.2 and 3 are Baniyan and Dhoti. On the same day morning he visited the spot and conducted the spot mahazar as per Ex.P-2 in the presence of C.Ws.2 and 3.

In the cross-examination, he has deposed and denied the suggestion that on 15.03.2008 he registered the case in the noon time. From their Police Station, Court is at the distance of 2 k.m. He sent the FIR in the morning and he does not know at what time it reached the Court. He denied the suggestion that he put ante time on the FIR.

P.W 12-Prabhu, the Investigating Officer, has deposed in his evidence that on 15.03.2008, he took up the investigation of the case from ASI, Sharanabasappa. On 16.03.2008, he visited the Government Hospital, Gulbarga, and recorded the further statement of complainant. On 26.03.2008 he recorded the statement of C.Ws.8 and 9. Accused No. 1 gave the voluntary statement, which is marked as per Ex.P-11 and produced the axe. He seized the same under the mahazar Ex.P-4, M.O.4 is the said axe. On 14.05.2008 he obtained wound certificates Exs.P-7 and P-8. On 17.05.2008, he secured Ex.P-9. In the cross-examination, P.W.12 has deposed and denied the suggestion that C.Ws.8 and 9 have not given the statement before him. He has not sent the seized articles to FSL for examination and report.

D.W. 1 Siddanna, who is accused No. 3, has been examined on the side of the defence, wherein he has deposed that Sy. No. 108 of 2 came to them from their parents. At the time of partition, the land was given to accused Nos.1 and 2. Accused No. 1 was cultivating the same, their brother Sabanna expired before the complainant filed the complaint. They have preferred the appeal before the Asst. Commissioner and he has produced the copy of the order, which is marked as per Ex.D-1.

In the cross-examination, he has deposed that Hanmantha (P.W.1) filed the suit in the Court. He admitted that in the cultivator�s column, the name of the complainant is mentioned. As there is dispute in between the complainant and them, they were not on talking terms and there was enmity between them. He denied the suggestion that they conspired to commit the murder of the complainant.

Perusing the oral evidence adduced by the prosecution witnesses, looking to the evidence of injured witnesses i.e., P.W.1. P.Ws.6 and 7, who are the complainant, son and wife of the complainant respectively, their evidence is not consistent with each other, there are contradictions in their evidence. P.W.1 has admitted in his evidence that earlier to the said incident he met with an accident, and perusing the injury certificate of P.W.6-Sabanna, who is the son of the complainant, the doctor has mentioned in the wound certificate regarding the history as accident and he has deposed that subsequently same was corrected the history as assault. Even during the course of cross-examination of Sabanna, it was suggested by the defence that he sustained the injury in the accident, it is no doubt true Sabanna has denied the said suggestion, but the admission by P.W. 1 that earlier to the said incident he met with an accident and mentioning of the same by the doctor in the wound certificate of Sabanna regarding the history that it is because of the accident assumes importance in appreciating the case of the prosecution. It is the defence of the accused that no such incident has taken place and because of the land dispute in Sy. No. 108 of 2, the appellants-accused Nos.1 to 7 along with other accused persons were falsely implicated in the case. P.Ws. 1 and 7 have deposed in their evidence that C.Ws.8 and 9. who have been examined as P.Ws.8 and 9, came to the rescue and pacified the quarrel, whereas PW.6-Sabanna has deposed in the evidence during the course of cross-examination that nobody had came to the rescue when the incident was going on. Looking to this evidence of three injured witnesses, it is not consistent so far as C.Ws.8 and 9 being the eye-witnesses to the incident. P.W.6-Sabanna and even other two injured have deposed that accused Nos.9 and 10 thrown chilly powder on the face of the complainant Hanmantha. P.W.6 with more precisely and specifically deposed that the chilly powder was also fallen on the ground. In the early morning on the next day of the incident, spot mahazar was conducted by the Police under Ex.P-2. I have perused the document Ex.P-2 carefully, absolutely there is no mention that when the spot mahazar was conducted in the house wherein the incident is said to have been taken place that there was presence of chilly powder on the floor of the house, hence, this also falsifies the case of the prosecution that accused Nos.9 and 10 thrown chilly powder on the lace of the complainant. Regarding the seizure of articles at the spot, C.Ws.2 and 3 are said to be the witnesses for spot mahazar Ex.P-2 and when they were examined before the Court as P.Ws.2 and 3, they have turned hostile and not supported the case of the prosecution. Even the alleged eye-witnesses i.e., P.Ws.8 and 9 when examined before the Court, they have also turned hostile and not supported the case of the prosecution. Therefore, the only evidence on the side of prosecution is the evidence of PWs.1, 6 and 7, who are said to be the injured witnesses, about their evidence I have already made detailed reference regarding their version in the examination-in-chief as well as the cross-examination. The evidence of P.W.1 shows that immediately after the incident during the night itself the Police came to the spot and shifted the injured to the hospital, but the complaint came to be filed at 2.00 a.m. on 15.03.2008. It is the evidence of Investigating Officer that the Court is at (he distance of 2 k.m. from the Police Station, when the complaint is said to have been registered at 2.00 a.m. on 15.03.2008 and FIR is issued, hardly it will take five (5) minutes to reach the residence of the jurisdictional Magistrate. I have perused the endorsement made by the Magistrate on the FIR, which document is marked as per Ex.P-10, which show that the learned Magistrate at Chittapura received the FIR at 9.00 p.m. on 15.03.2008 i.e., after more than 12 hours of registering the complaint. Hence, there is a delay in submitting the FIR before the jurisdictional Magistrate, which is not properly explained by the prosecution with cogent and satisfactory evidence. It is specifically suggested by the defence during the course of cross-examination that the FIR was ante timed, so this defence clearly shows that the FIR was not immediately dispatched and to cover up the delay, the Police have ante timed the FIR, about this aspect also there is no satisfactory explanation or any supporting material produced from the prosecution.

Coming to the evidence of the doctor-P.W. 10, who is said to have been examined all the injured persons on 15.03.2008, has admitted in the cross-examination that there is no basis for him to mention that there are grievous injuries. She clearly admitted that she has made the corrections regarding time at which she has conducted the examination and admitted that she corrected the time as 3.9 a.m. I have carefully perused Ex.P-7, which is the injury certificate in respect of P.W.6-Sabanna, there are corrections at 3 to 4 places with regard to time i.e., a.m. or p.m., and date. The original time mentioned as 3, which is corrected as 3.9, the original writing shows that it is p.m. and later the word �P� has been over written as �A�. Looking to the date, it is originally mentioned as 14.03.2008 and the figure �4� at two places has been over written with the figure �5�, so as to make it appear as 15.03.2008. About all these corrections, there are no satisfactory explanation given by the doctor, who is said to have conducted and issued the injury certificates. The evidence of the doctor in the cross-examination clearly shows that these injury certificates have been fabricated with regard to time, a.m., p.m. and date. Therefore, it will not inspire the confidence in the mind of the Court to rely upon such document in which so many corrections have been made. The doctor, being a responsible officer, ought not to have done such corrections in the documents i.e., injury certificates.

I have also perused the evidence of the Investigating Officer as well as the complainant (P.W.1). As it is rightly submitted by the learned counsel for the appellants regarding lodging of the complaint that immediately after the incident when the appellants were present at the spot, the complainant ought to have filed the complaint then and there itself, which is also not done in this case. It is no doubt true, the evidence of the injured witnesses always carries more weight and it is to be normally relied upon by the Courts. But looking to the inconsistencies in the evidence of three injured witnesses and the probability of defence of the accused that it is because of the accident, the complainant and his family members sustained such injuries and no such incident as alleged, has taken place, which is also supported by the other materials placed on record by the defence by way of cross-examination of the prosecution witnesses, hence, I am of the opinion that even the evidence of injured witnesses also not worth believable and not acceptable. Looking to the judgment and order of conviction passed by the Trial Court all these aspects were not at all appreciated by the Trial Court and even though the doctor, has deposed in her evidence that there is no basis for issuing the certificate showing that there are grievous injuries, even X-rays were also not taken, even then the prosecution contending that there is an offence punishable under Sections 307 and 326 of IPC. All these serious aspects of the matter were not properly appreciated and considered by the Trial Court and the Trial Court wrongly read the evidence and wrongly proceeded to convict the accused persons. Admittedly, according to the evidence of prosecution witnesses as well as the defence witness D.W.1, there was a dispute in between two parties in respect of landed property in Sy.No. 108 of 2 and even it is admitted by the prosecution witness that there was enmity and difference of opinion between the family of the complainant and the family of the accused, when that is so, the possibility of false implication of the accused persons in the case cannot be completely ruled out. Considering all these aspects of the matter reasonable doubt arises in the mind of the Court that whether really the appellants have committed such offences and hence, the benefit of such doubt has to be given to the appellants. Accordingly, the appeal is allowed and the judgment and order of conviction passed by the Trial Court is hereby set aside. The appellants-accused Nos. 1 to 7 are acquitted of all the offences with which they are charged.

The bail bonds of appellants-accused Nos. 1 to 7 stand cancelled.

The fine amount deposited, if any, be refunded to appellants-accused Nos. 1 to 7.