Siddaiah @ Siddu @ Siddegowda and Others vs The State of Karnataka

N. Ananda, J.—The appellants (hereinafter referred to as accused No. 1 to 6) were tried for offences punishable under Sections 143, 147, 148, 323, 324, 307 r/w 149 IPC in S.C. No. 334/1999 on the file of Fast Track Court-III at Mysore. Accused No. 1 to 6 are convicted for offences punishable under Sections 143, 147, 148, 324, 326 r/w 149 IPC and they have been sentenced to undergo imprisonment for a period ranging from two months to two years and fine and default sentence for the aforestated offences. Therefore, Accused No. 1 to 6 are before this court.

I have heard Sri. H.S. Chandramouli, learned counsel for accused and learned State Public Prosecutor for the State. 2. The case of prosecution in brief is as follows:

Accused No. 1, 3 and 4 are the sons of accused No. 2; Accused No. 5 is the younger brother of accused No. 2; Accused No. 6 is the son of accused No. 5. They are natives of Katwadipura village, Nanjangud Taluk, Mysore District.

P.W.1-Lakshmana Shetty is the father of P.W. 2-Venkatesha, P.W. 4-Murthy @ Srinivasa Murthy, P.W. 5-Manjunath and P.W. 6-Ramesha. P.W. 3-Srinivasa Shetty is the younger brother of P.W. 1-Lakshmana Shetty; P.W. 12-Maramma is the wife of P.W. 1-Lakshmaiah Shetty and P.W. 8 is related to P.W. 1. P.W. 10 and P.W. 13 are the cousins of P.W. 1.

The house of P.W. 1 and house of accused No. 1 are situate at a distance of 30 feet. It appears, there was a public water tap near the house of accused No. 1 regarding which there was a dispute between the family members of accused No. 2 on one side and family members of P.W. 1 on the other.

On the date of incident viz., 15.07.1999 at about 7.00 a.m., the grand daughter of P.W. 1 namely Shilpa (C.W. 9) had gone to collect water from the public tap. It is alleged that accused No. 1 scolded her which she promptly reported the matter to her grand father (P,W. 1). Thereafter, P.W. 1 went out of the house and questioned accused No. 1. Accused No. 1 is alleged to have slapped P.W. 1. After seeing the incident of assault, the sons of P.W. 1 and sons of accused No. 1 came to the place of incident. It is alleged that accused No. 1 to 6 were armed with deadly weapons like iron rod, clubs and stones. Accused 1 to 6 assaulted prosecution witnesses namely P.W. 1-Lakshmana Shetty P.W. 2-Venkatesh, P.W. 3-Srinivasa Shetty, P.W. 4-Murthy @ Srinivasa Murthy, P.W. 5-Manjunath and C.W. 8-Sannamma with deadly weapons.

It is the case of defence that prosecution witnesses namely P.W. 1-Lakshmana Shetty and his sons, at the first instance, picked up quarrel with accused No. 1, 3 and 4 and assaulted them. They were treated in Government Hospital at Nanjangud. The first information lodged by accused No. 1 was registered in Crime No. 187/1999 and there was investigation of said crime. The criminal case filed after investigation of Crime No. 187/1999 was committed to the court sessions and numbered as S.C. No. 309/2002. The instant case (S.C. No. 334/1999) and S.C. No. 309/2002 were tried as case and a counter case. As aforestated, the learned trial judge has held the accused guilty of offences punishable under Sections 143, 147, 148, 324, 326 r/w 149 IPC. It appears some of the prosecution witnesses of the instant case were tried in S.C. No. 309/2002 and they were acquitted of offences alleged against them.

Sri. H.S. Chandramouli, learned counsel for accused has made following submissions:

I. The quarrel between the parties started at the instance of P.W. 1, who assaulted accused No. 1 without any reason. The prosecution witnesses, in particular P.W. 1 and his sons were armed with clubs. They assaulted accused No. 4 and 5. Therefore, the evidence adduced by the prosecution to prove that accused No. 1 to 6 were the members of unlawful assembly and they were armed with deadly weapons and caused grievous and simple injuries should not have been accepted by the trial court.

II. There was sudden quarrel between the two groups. The prosecution witnesses were aggressors and they had caused injures to the accused. In the circumstances, the learned trial judge was not justified in fastening vicarious criminal liability on accused No. 1 to 6.

III. The medical evidence adduced by prosecution is not satisfactory.

IV. The prosecution witnesses (private witnesses) are the sons and close relatives of P.W. 1. Therefore, the interested testimony of aforestated witnesses which is not supported by independent witnesses should not have been accepted by the trial court.

V. In view of discrepant and distorted evidence adduced by the prosecution, the learned trial judge should have extended benefit of reasonable doubt to the accused.

The learned State Public Prosecutor would justify the impugned judgment.

Having heard learned counsel for parties and having gone through evidence and the impugned judgment, I formulate following points for determination:

1) Whether the prosecution has proved that at about 7.30 a.m., on 15.07.1999 accused No. 1 to 6 were the members of unlawful assembly and in furtherance of common object of unlawful assembly they caused grievous injuries to P.W. 1 and 2 and simple injuries to other prosecution witnesses, thereby accused No. 1 to 6 committed an offence punishable u/s 143 IPC?

2) Whether the prosecution has proved that accused No. 1 to 6 being the members of unlawful assembly had used criminal force by using deadly weapons, thereby committed an offence punishable u/s 147 IPC?

3) Whether the prosecution has proved that accused No. 1 to 6 being the members of unlawful assembly and in the course of same transaction committed rioting, thereby committed an offence punishable u/s 148 IPC?

4) Whether the prosecution has proved that accused No. 1, 3 and 4 being the members of unlawful assembly and in furtherance of common object of unlawful assembly caused hurt on P.W. 2-Venkatesha and C.W. 8-Sannamma by means of clubs and in the course of same transaction accused No. 1, 2, 5 have voluntarily caused hurt to P.W. 1, P.W. 3, P.W. 4 and P.W. 6, thereby accused No. 1 to 6 committed an offence punishable u/s 324 r/w 149 IPC?

5) Whether the prosecution has proved that in the course of same transaction, accused No. 2 being the member of unlawful assembly and in furtherance of common object of unlawful assembly assaulted P.W. 2-Venkatesha with an iron rod and caused grievous hurt to P.W. 2, thereby accused No. 1 to 6 committed an offence punishable u/s 326 IPC?

6) Whether the learned trial judge has properly appreciated the evidence on record?

7) To what order?

Before adverting to appreciation of evidence adduced by prosecution, it is necessary to state certain facts which are not in dispute.

The relation between P.W. 1 and his family members and the accused was strained. It is not in dispute that house of accused No. 1 to 6 and P.W. 1 and other prosecution witnesses are situate on the same road. It is also not disputed that parties were not cordial and there was dispute between them in relation to collection of water from the public tap.

Re Point No. 1

The case of prosecution that accused No. 1 to 6 were the members of unlawful assembly is belied from the evidence of P.Ws. 1 to 6 and evidence of Medical Officers and Investigation Officer.

P.W. 1 has deposed; before the incident, his grand daughter namely C.W. 9-Shilpa (not examined before the court below) had gone to collect water from the public tap, at that time, accused No. 1 scolded her; C.W. 9 informed the matter to P.W. 1 who came near the public tap and questioned accused No. 1; accused No. 1 assaulted P.W. 1; at that time, the sons of P.W. 1 and other witnesses came near the place of incident so also, the sons of accused No. 1 reached the place of incident.

P.W. 1 has admitted that in the course of same transaction, A1 had suffered injuries. He was also treated in Government Hospital at Nanjangud. P.W. 1 was arrayed as one of the accused in a counter case (S.C. No. 309/2002).

P.W. 11-Dr. K.V. Ravindran, the then medical officer of Government Hospital at Nanjangud has admitted that on 15.07.1999 (date of incident) between 9.30 - 10.15 a.m., he had examined accused No. 1, 3, 4 and 5 in the Government Hospital at Nanjangud.

P.W. 8-Mangalagowramma who is the grand daughter of P.W. 1 has deposed; that on the date of incident she was in her house; there was a quarrel near the house of Lakshmana Shetty; when she reached the place of incident, the quarrel had come to an end. The witnesses namely P.W. 2 and P.W. 5 had suffered injuries and they had fallen down.

During cross-examination, she has admitted that, on the information lodged by accused No. 1 in relation to same incident, a criminal case was registered against P.W. 1 and P.W. 1 was attending the court.

P.W. 9-H. Doddaiah, the then Assistant Sub-inspector of Police, Nanjangud Rural Police Station has admitted that on 15.07.1999 (date of incident) at about 9.00 a.m., the first accused lodged first information alleging assault by some of the prosecution witnesses and he registered Crime No. 187/1999.

From the evidence of P.W. 1, we find that at the first instance there was a quarrel between P.W. 1 and accused No. 1. P.W. 1 was joined by his sons and Accused No. 2 was joined by his sons and there was a group clash.

In a decision reported in AIR 1970 SC 219 (in the case of Kanbi Nanji Virji and Others v. State of Gujarat), the Supreme Court has held:--

The High Court has found, in our opinion, rightly, that there was a melee at the time of the incident and the two groups indulged in a free fight as a result of which four persons were injured on the side of the prosecution and two on the opposite side. A-1 and A-2 had sustained very serious injuries, several of which were incised injuries. At one stage it was thought that A-2 may not survive. His condition was so precarious that it became necessary to immediately operate upon him. The deceased Sabalsing had sustained two injuries only one out of them was a serious one. The other was a mere abrasion. The head injury proved fatal. Bhupatgar had received several injuries. Similarly P.Ws. 5 and 6 had also received several injuries. Once we come to the conclusion that the injuries sustained by the persons were in the course of a free fight, as the High Court had come to, then only those persons who are proved to have caused injuries can be held guilty for the injuries caused by them.

In the case on hand, there is ample material to hold that accused No. 3 and 4 had also suffered injuries in the same incident. Even if the injuries suffered by accused No. 3 and 4 are simple in nature, it cannot be held that accused No. 1 to 6 had formed into unlawful assembly and the common objection of unlawful assembly was to cause grievous/simple injuries to prosecution witnesses. In the circumstances, it is not possible to hold that accused No. 1 to 6 were the members of unlawful assembly and they had committed rioting and used criminal force with deadly weapons. The prosecution cannot invoke Section 149 IPC. The accused could be held guilty for individual acts committed by them. The evidence of P.W. 1 that accused No. 1 to 6 were members of unlawful assembly does not find corroboration from the contents of first information (Ex. P1). C.W. 9-Shilpa who had witnessed the genesis of occurrence was not examined before the trial court.

The learned trial judge without noticing the background of incident and also injuries suffered by accused No. 2 and 3 in the course of same transaction has held that accused No. 1 to 6 were the members of unlawful assembly and the common object of unlawful assembly was to cause simple and grievous injuries to some of the prosecution witnesses. Therefore, the findings recorded by the learned trial court that accused No. 1 to 6 were guilty of offences punishable under Sections 143, 147, 148 IPC cannot be accepted.

The next point for determination is: whether the prosecution has proved individual acts committed by the accused? If so, what are the offences committed by accused No. 1 to 6?

The prosecution has relied on the eyewitness account of injured and eyewitnesses. The prosecution has also relied on the medical evidence.

P.W. 1 has deposed; that accused No. 1 slapped P.W. 1 and accused No. 2 assaulted on the head of P.W. 2 with an iron rod; accused No. 3 assaulted on the left hand of P.W. 1 with a club and accused No. 4 had assaulted P.W. 1 with a club.

If what has been deposed by P.W. 1 is true, P.W. 1 should have suffered multiple injuries. The prosecution has not adduced medical evidence to prove that P.W. 1 had suffered injuries. Therefore, the evidence of P.W. 1 excepting that accused No. 2 assaulting P.W. 2 with an iron rod, is not free from reasonable doubt.

P.W. 2 has consistently deposed that accused No. 2 assaulted on the head of P.W. 2 with an iron rod and he was assaulted by accused No. 3 and 4 with clubs.

P.W. 7-Dr. Manjunath who had examined P.W. 2-Venkatesh in the Government Hospital at Mysore has deposed; that on 15.07.1999 at about 10.10 a.m., he examined P.W. 2-Venkatesh and found following injuries:

1) Lacerated injury over the scalp - left parieto occipital region. CT Scan reveals large extra dural heamatoma in left tempero parietal region.

2) Blunt injury on left heamo thorax.

3) Superficial abraded injury over the right hand.

The evidence of P.W. 2 finds substantial corroboration from the contents of wound certificate. Therefore, there are no reasons to suspect the evidence of P.W. 2.

P.W. 2 has deposed; that he was assaulted by accused No. 2 with an iron rod and he had suffered injuries which have been described supra. The injuries suffered by P.W. 2 particviarly injury number No. 1 - fracture of tempero parietal bone was grievous in nature. The evidence of P.W. 2 that he was assaulted by accused No. 1 finds corroboration from the evidence of P.W. 1. Therefore, it can safely be held that accused No. 2 assaulted on the head of P.W. 2 with an iron rod and caused grievous injuries to him and committed an offence punishable u/s 326 IPC.

P.W. 3-Srinivasa Shetty has deposed; accused No. 5 assaulted on his right shoulder and left wrist with a club and he was shifted to General Hospital at Nanjangud; P.W. 3 was aged about 75 years at the time of incident. P.W. 3 has denied suggestion that P.W. 3, his younger brother and his nephews had assaulted accused No. 1 and thereafter, assaulted accused 3 to 5, who came to rescue accused No. 1.

As already stated, P.W. 3 was aged about 75 years at the time of incident. In the circumstances, suggestion put to P.W. 3 that he had assaulted accused 1 & 3 to 5 looks highly improbable. On the other hand, this suggestion would support the case of prosecution about presence of accused No. 5 near the place of incident. Ex. P.7 is the wound certificate relating to examination of P.W. 3 in General Hospital at Nanjangud.

The contents of Ex. P.7 would reveal that P.W. 3 was examined by C.W. 14-Dr. Jayakumar at about 9 a.m. on 15.07.1999 and P.W. 3 had suffered following injuries:--

I. Lacerated wound measuring 2" x 1/4" x 1/4" over right side of parietal region

II. Diffused contusion wound over right upper arm on lower 1/3rd region

III. Diffused contusion wound over left forearm on middle 1/3rd of left ulna.

P.W. 11-Dr. K.V. Ravindran has been examined to prove the contents of Ex. P.7 since Dr. Jayakumar, who had examined P.W. 3 in General Hospital at Nanjangud had left service and he was in Madhya Pradesh. P.W. 11 has given evidence in proof of contents of Ex. P.7. Therefore, evidence of P.W. 3 that he was assaulted by accused No. 5 finds corroboration from medical evidence. P.W. 3 had no reasons to falsely implicate accused No. 5. Accused No. 5 assaulted P.W. 3 with a club and caused injuries to him. Therefore, I hold that accused No. 5 had committed an offence punishable u/s 324 IPC.

P.W. 4-Murthy @ Srinivasa Murthy has deposed about genesis of incident. P.W. 4 has deposed; when his father (P.W. 1) questioned accused No. 1, he was slapped by accused No. 1; at that time, accused 2 to 6 armed with iron rods, clubs and stones assaulted P.W. 1; P.W. 4 intervened to save his father (P.W. 1); at that time, accused No. 5 assaulted on left shoulder of P.W. 4 with a club and P.W. 4 was treated in General Hospital at Nanjangud. Ex. P. 10 is the wound certificate of P.W. 4 issued by General Hospital at Nanjangud.

The contents of Ex. P. 10 would reveal that P.W. 4 was examined by the Medical Officer at about 9.30 a.m., on 15.07.1999 and P.W. 4 had suffered following injuries:--

I. An abrasion over left upper arm measuring 1 1/2" x 3 cms, on middle 1/3rd region

II. An abrasion on left forearm measuring 2" x 2 cms. The injuries were simple in nature.

As already stated, the Medical Officer namely Dr. Jayakumar, who had treated P.W. 4, had left his service. Therefore, P.W. 11-Dr. K.V. Ravindran was examined to prove the contents of Ex. P. 10.

During cross-examination of P.W. 4, he has denied suggestion that P.W. 4 and other prosecution witnesses had assaulted accused No. 5 and P.W. 4 has given false evidence to escape from criminal liability. The presence of accused near place of incident is not seriously disputed. It is proved that P.W. 4 was injured in the incident of assault. Being injured, P.W. 4 would be least disposed to spare real assailant to substitute the accused. Therefore, there are no reasons to suspect the evidence of P.W. 4. Thus, prosecution has proved that accused No. 5 had assaulted P.W. 4 with a club and caused hurt to P.W. 4.

P.W. 5-Manjunath has deposed; when accused No. 1 was assaulting his father (P.W. 1), P.W. 5 came to rescue his father; accused 1 to 5 were armed with weapons; accused No. 2 assaulted on head of P.W. 1 with a club; accused No. 2 assaulted on head of P.W. 5 with an iron rod; accused No. 1 assaulted on right shoulder of P.W. 5 with a club and he was treated in General Hospital at Nanjangud; Ex. P.8 is the wound certificate of P.W. 5.

The contents of Ex. P.8 would reveal that on 15.07.1999 at about 9.15 a.m., P.W. 5 was examined in General Hospital at Nanjangud and he had suffered following injuries:--

I. A lacerated wound measuring 1 1/2" x 1/2" x 1/4" over occipital region; bleeding from wound present.

II. Bruise wound measuring 8" x 1" below right infrascapular region, reddish in colour.

III. Diffused contusion wound over right upper arm on lower 1/3rd region.

As already stated, the Medical Officer namely Dr. Jayakumar, who had treated P.W. 5 had left his service. Therefore, P.W. 11-Dr. K.V. Ravindran was examined to prove the contents of Ex. P.8.

During cross-examination, P.W. 5 has deposed; he was arrayed as accused in Sessions Case filed on the basis of first information lodged by accused No. 1. P.W. 5 has denied suggestion that at the time of incident, he had gone to factory. P.W. 5 has denied suggestion that he had concocted wound certificate.

From tenor of cross-examination of P.W. 5, the accused has not disputed presence of accused No. 1 near place of incident. Therefore, prosecution has proved that accused No. 1 had assaulted on right shoulder of P.W. 5 with a club and caused simple hurt to him and thereby committed an offence punishable u/s 324 IPC.

P.W. 6-Ramesh, P.W. 12-Maramma and P.W. 13-Raju have deposed that they were also assaulted by accused with clubs, but their evidence is not supported by medical evidence. P.W. 6, P.W. 12 & P.W. 13 had not taken treatment in any hospital. Therefore, case of prosecution that P.W. 6, P.W. 12 & P.W. 13 suffered injuries in the course of same transaction has not been proved by cogent and convincing evidence.

In view of the above discussion, I hold that prosecution has proved that accused Nos. 1 & 5 had committed an offence punishable u/s 324 IPC. Accused No. 2 has committed an offence punishable u/s 326 IPC. In the discussion made supra, I have held that incident of assault had taken place in a melee and some of the accused were injured in the same transaction. Therefore, prosecution cannot invoke section 149 IPC to fasten vicarious liability on other accused. The learned trial Judge, without proper appreciation of evidence and facts and circumstances of the case has fastened vicarious liability on accused 1 to 5 by invoking section 149 IPC. Therefore, impugned judgment calls for interference.

Sri H.S. Chandramouli, learned counsel for appellants would submit that there is no evidence on record to prove that accused No. 2 had voluntarily caused grievous hurt to P.W. 2.

In the discussion made supra, I have referred to injuries suffered by some of the accused. Accused No. 2 was not injured in incident of assault that took place between prosecution witnesses and accused. Therefore, it is not possible to hold that accused No. 2 had not voluntarily caused grievous hurt to P.W. 2.

Sri H.S. Chandramouli, learned counsel for accused would submit that incident of assault had taken place in a sudden quarrel. The assault was not pre-meditated; accused are agriculturists; they do not bear criminal antecedents. The learned counsel would submit that accused may be released by extending benefit of section 4 of Probation of Offenders Act, 1958.

The learned State Public Prosecutor would submit that accused No. 2 had caused grievous hurt to P.W. 2 by assaulting him with an iron rod, so also accused 1 & 5 had wielded clubs.

Accused No. 2 had wielded an iron rod and caused fracture of tempore parietal bone of P.W. 2. I have held accused No. 2 guilty of an offence punishable u/s 326 IPC. Accused 1 & 5 do not bear criminal antecedents, yet the fact remains they had wielded weapons such as iron rods and clubs.

Having regard to aggravating and mitigating circumstances, I hold the impugned judgment of conviction and sentence requires modification.

In the result, I pass the following:--

ORDER

The appeal is accepted in part. The impugned judgment is modified. Accused No. 3-Marappa, accused No. 4-Nagaraju and accused No. 6-Revanna are acquitted of offences punishable under sections 143, 147, 148, 324 & 326 r/w 149 IPC. Accused No. 1-Siddaiah @ Siddu @ Siddegowda, accused No. 2-Hutchegowda and accused No. 5-Madegowda @ Mahadeva are acquitted of offences punishable under sections 143, 147, 148 r/w 149 IPC. Accused No. 1-Siddaiah @ Siddu @ Siddegowda and accused No. 5-Madegowda @ Mahadeva are acquitted of an offence punishable u/s 326 r/w 149 IPC. Accused No. 2-Hutchegowda is acquitted of an offence punishable u/s 324 IPC. Accused No. 2-Hutchegowda is convicted for an offence punishable u/s 326 IPC. Accused No. 2-Hutchegowda shall undergo simple imprisonment for a period of one year and pay fine of Rs. 50,000/-, in default to undergo simple imprisonment for a period of six months for an offence punishable u/s 326 IPC. Accused No. 1-Siddaiah @ Siddu @ Siddegowda and accused No. 5-Madegowda @ Mahadeva are convicted for an offence punishable u/s 324 IPC. Accused No. 1-Siddaiah @ Siddu @ Siddegowda and accused No. 5-Madegowda @ Mahadeva shall undergo simple imprisonment for a period of three months and pay fine of Rs. 20,000/- each, in default to undergo simple imprisonment for a period of one month for an offence punishable u/s 324 IPC. Out of the fine to be deposited by accused Nos. 1, 2 & 5, a sum of Rs. 30,000/- shall be paid as compensation to P.W. 2-Venkatesha and a sum of Rs. 10,000/- each shall be paid as compensation to P.W. 3-Srinivasa Shetty, P.W. 4-Murthy @ Srinivasa Murthy and P.W. 5-Manjunath.

If accused No. 3, 4 and 6 have deposited the fine amount, the same shall be refunded to them. The Bail Bonds executed by accused No. 3, 4 and 6 stand cancelled.

The period of detention undergone by accused Nos. 1, 2 & 5, if any, shall be given set off as provided u/s 428 Cr.P.C.