R. Mahadev and Others vs The State of Karnataka

B.V. Pinto, J.—This Criminal Revision Petition is filed challenging the Judgment dated 6.3.2012 passed by the IV Addl. Sessions Judge, Mysore in Crl. A. No. 117/2011 confirming the Judgment dated 29.8.2011 passed by the Principal Civil Judge & JMFC, at Nanjangud in C.C. No. 681/2009, wherein, the learned Magistrate is pleased to convict the petitioners for the offences under Sections 341, 323 and 326 read with Section 149 of IPC and sentencing accused No. 1 therein to undergo R.I. for one month and to pay fine of Rs. 500/- in default to undergo S.I. for 15 days for the offence u/s 341 read with Section 149 IPC; further sentencing accused Nos. 1 to 4 to undergo R.I. for one year and to pay fine of Rs. 1,000/- each in default to undergo S.I. for 3 months for the offence u/s 323 read with Section 149 IPC and also sentencing accused No. 5 to undergo R.I. for 2 years and to pay fine of Rs. 10,000/- in default to suffer S.I. for a period of six months for the offence u/s 326 read with Section 149 IPC. It is the case of the prosecution that on 17.12.2008 at about 10 p.m. within the jurisdiction of Nanjangud Rural Police Station in Deveerammanahalli village in front of Ramamandira in a public road, the accused formed themselves, in an unlawful assembly and started quarrelling with the Complainant in respect of the collection made for the feast and thereafter accused No. 1 has assaulted P.W. 1, by obstructing him and dashed his head to his neck and thereafter all the accused including accused Nos. 2 and 3 assaulted and abused the complainant, thereby they are alleged to have committed the offences under Sections 341, 323 read with Section 149 of IPC.

It is the further case of the prosecution that the 5th accused assaulted on the right leg of the complainant and caused grievous injuries, thereby, he is alleged to have committed the offence u/s 326 read with Section 149 of IPC.

The prosecution in order to prove the case against the accused has examined in all 10 witnesses and got marked Exs.-P1 to P7 and produced MO. 1-club used for commission of the offence. The trial Court after considering the evidence on record convicted the accused for the aforesaid offences and sentenced them as hereinbefore mentioned.

The petitioners filed the appeal before the Sessions Court at Mysore and the learned Sessions Judge while confirming the order of conviction passed against the petitioners, modified the sentence for the offence u/s 341 of IPC by directing accused No. 1 to pay a fine of Rs. 500/- and further modified the sentence imposed on the petitioner Nos. 1 to 4 for the offence u/s 323 of IPC by directing them to pay Rs. 1,000/- each as fine, thus, setting aside the sentence of imprisonment while keeping the sentence imposed on accused No. 5 intact without any modification. It is this order of conviction and sentence, which is challenged in this case.

Out of the witnesses examined before the Court, P.W. 1-Gurumallanna is the Complainant and injured. He has stated that on the date of incident, accused No. 1-R. Mahadev, came behind him and dashed his head to the neck of P.W. 1. At that time, accused Nos. 2 to 5 came and all of them assaulted him by means of a club. All the other accused also stamped him and kicked him. He has sustained an injury to the leg and his leg had broken, he lost his conscience. Thereafter, his sister Girijamma and her son-Nithyananda took him to the house, further removed him to the hospital. Thereafter complaint came to the lodged. In the cross-examination, it is suggested that no incident as alleged has happened and that a false case has been filed against the accused out of the enmity.

P.W. 2-Mahadevamma is the sister of P.W. 1. She has stated that one Shivanna and Swamy i.e., accused Nos. 4 and 5 have assaulted her brother by means of a club. However, she has stated that she does not know what happened thereafter but her brother had sustained injuries. She was present when the panchanama has been prepared by the police. However, she has been treated as hostile to the case of the prosecution.

P.W. 3-Rachaiah has stated that there was some quarrel between C.W. 1 and the accused and thereafter they went away. P.W. 3 also has been treated as hostile to the case of the prosecution. P.W. 4-Sannaiah; P.W. 5-Nithyananda K.M.; P.W. 6-Nanjundaswamy and P.W. 7-Basavaraju have not supported the case of the prosecution. P.W. 8-R. Nagaraju has stated that he was the Head Constable of Nanjangud Rural Police Station and on the basis of the written complaint given by P.W. 1-Gurumallanna, a case in Crime No. 392/2008 has been registered and thereafter the FIR is transmitted to the Court.

P.W. 9-Dr. Mahadevamurthy is the medical officer of the Government Hospital, Nanjangud, who has stated that P.W. 1 has sustained three injuries, out of which injury No. 2 on his right foot was grievous in nature. He has stated that P.W. 1 was referred to Orthopaedician. However, the x-ray has not been produced by him before the Court. P.W. 10-D. Somanna, PSI., of Nanjangud Rural Police Station has conducted the investigation in this case.

It is from the above evidence of the prosecution witnesses and the materials on record; that the accused have been convicted and sentenced.

Sri M.S. Rajendra Prasad, learned Senior Counsel for the petitioners submits that the evidence of the prosecution witnesses is not consistent since all the witnesses except P.W. 1 has turned hostile to the case of the prosecution. The evidence of P.W. 1 was not inspiring the confidence to convict the accused and hence, he submits that the accused may be acquitted. It is also submitted by him that the incident has happened in the night at 10 p.m. and that all the witnesses have not deposed before the Court coherently and therefore accused may be acquitted of the offences levelled against them by giving benefit of doubt.

On the other hand, Sri S. Dore Raju, learned SPP for the Respondent/State submits that the trial Court as well as the Sessions Judge have carefully gone through the evidence of the prosecution witnesses and from the said evidence, it is clear that the accused have committed the offences mentioned and therefore the order of conviction may be sustained.

I have gone through the entire materials on record. P.W. 1 has stated before the Court that accused No. 1-R. Mahadev has dashed his head on his neck. Whereas A2 to A5 assaulted with a club on his leg. He has also stated in his evidence that others also kicked him by pushing him down. However, the evidence of P.W. 9-Dr. Mahadevamurthy indicates that there are two injuries sustained by P.W. 1. If all the 5 accused had assaulted with the club as per the version of P.W. 1, then there ought to have been more than 5 injuries in the person of the injured. In view of this fact, it is clear that P.W. 1 has been exaggerating the acts of the accused. The evidence of P.W. 2 on the other hand, who is none other than the sister of P.W. 1 states that Shivanna and Swamy have assaulted with club to her brother. Whereas, the prosecution has seized only MO. 1-club and it is not specifically stated as to whom among the two Shivanna and Swamy has assaulted the injured with the club. The other witnesses examined by the prosecution have not supported the case of the prosecution at all. Under the circumstances, the version of P.W. 1 cannot be believed in the absence of any corroboration so far as the offence u/s 326 of IPC is concerned. It is also to be noted that neither the Doctor who has taken the x-ray nor the x-ray has been produced in this case. In that view of the matter, the offence u/s 326 IPC is not made out. Under the circumstances, in the absence of independent corroboration, I am of the opinion that the prosecution has not proved the case against the petitioners beyond all reasonable doubt and they are entitled for an order of acquittal. Accordingly, the Petition is allowed. The order of conviction and sentence passed against the petitioners by the learned Magistrate and the order of the learned Sessions Judge in an appeal is hereby set aside. The petitioners are acquitted of the offences levelled against them. The bail bonds, if any executed by them shall be discharged. Fine amount, if any deposited by them shall be refunded.