State and Others vs Moganna Shetty and Others

Mohan M. Shantana Goudar, J.—The Judgment & Order dated 23rd July 2011 passed by the Prl. Sessions Judge, Mysore in S.C. No. 124/2009 is the subject matter of these three appeals. By the impugned Judgment, the Court below has acquitted Accused No. 3 of all the charges levelled against him and convicted Accused Nos. 1,2,4 and 5 for the offences punishable under Sections 324 and 326 r/w Section-34 of IPC. By the very Judgment, the trial Court has also acquitted Accused Nos. 1,2,4 and 5 for the offences under Sections 143, 147, 148, 307 r/w Section 149 of IPC.

Criminal Appeal No. 1167/2011 is filed by the State questioning the Judgment and Order of acquittal of Accused No. 3 for the offences with which he is charged. It is also prayed in the said appeal by the State that all the accused shall be convicted for the offences with which they were charged.

Criminal Appeal No. 850/2011 is filed by the convicted Accused No. 5 praying for his acquittal.

Criminal Appeal No. 842/2011 is filed by the convicted Accused Nos. 1,2 and 4 praying for their acquittal.

Case of the prosecution in brief is that the injured as well as the accused were residents of Sagarakatte village, Mysore taluk, which comes under the jurisdiction of Yelwala Police Station; about one week prior to the incident in question, Mr. Nagesha s/o Shivanna took Smt. Vasantha D/o Rajanna and both of them were not in the village; in that connection, family members of Vasantha have given complaint to the Police; the complainant herein -Somashekhara and his brother Jagadeesha were helping the family members of Vasantha to go to the Police Station and lodge the complaint; in that regard, the accused has got ill-will against the complainant in the present matter and his brother Jagadeesha (PW.1). It is relevant to note that Nagesha s/o Shivanna who had taken Ms. Vasantha from the village is a close relative of Accused No. 1 and his family.

At about 8.30 p.m. on 10.8.2008 when PW.1 was proceeding towards his house on the road situated behind the house of Krishna Shetty (Accused No. 4), all the accused came to the spot forming themselves into an unlawful assembly; Accused Nos. 1 and 2 were holding macchu (chopper) in their hands; Accused Nos. 4 and 5 were holding clubs in their hands; they started quarrelling with Jagadeesha (PW.1) and questioned him as to why he is supporting the family members of Vasantha; in order to take away the life of Jagadeesha (PW.1), Accused No. 1 assaulted him on the left side of the ear, left side of the cheek and other parts of the body; Accused No. 2 assaulted on the left hand of PW.1, consequent upon which his left hand ring finger was chopped off; at that point of time, the complainant - Somashekhara and PW.2 being the brothers of PW.1 tried to pacify and save the life of PW.1; thereafter Accused Nos. 2,3,4 and 5 assaulted the complainant-Somashekhara, PW.1 and PW.2 with choppers and clubs. It is alleged that Accused No. 3 - Manja snatched the chopper from the hands of his father (Accused No. 1) and assaulted on the right ear of the complainant, as a result of which he sustained cut injuries; Accused No. 4 assaulted with chopper on the left ear of PW.2 and Accused No. 5 assaulted PW.2 with clubs on his back as well as all over the body.

Immediately after the incident, the injured were taken to Police Station; however the Police directed them to get the treatment forthwith and consequently, the injured were taken by the friends to B.M. Hospital, Mysore for treatment; the complainant-Somashekhara and PW.1 were admitted to hospital as in-patients, whereas PW.2 was treated as an out-patient in the said hospital; the complainant has sustained one grievous injury, whereas PW.1 has sustained 2 grievous injuries apart from one simple injury.

The complaint came to be registered in Crime No. 110/2008 by PW.10, the PSI of Yelwala Police Station on 11.8.2008 at 11 a.m. on the basis of the statement given by injured - Somashekhara (who died during the course of trial) between 10.00 and 10.45 a.m. on 11.8.2008. After completion of investigation, the charge sheet came to be filed. It is further relevant to note that in the matter on hand, the Investigating Officer who completed the investigation and laid the charge sheet is not examined before the Court.

In order to prove its case, the prosecution in all examined 10 witnesses and got marked 17 Exhibits and 7 Material Objects. On behalf of the defence, 6 Exhibits were got marked. Accused No. 2 got himself examined as DW.1.

As aforementioned, the trial Court on evaluation of the material on record acquitted Accused No. 3 of all the charges levelled against him; convicted Accused Nos. 1,2,4 and 5 for the offences under Sections 324 and 326 r/w 34 of IPC and acquitted them for the other offences with which they were charged.

The material on record also discloses that even prior to lodging of the complaint by Somashekhara, which came to be registered in Crime No. 110/2008, Accused No. 2 - Keshava also filed the first information before the very Police Station at about 10.30 a.m. on 11.8.2008 which came to be registered in crime No. 109/2008. In the said crime, four persons viz., Keshava (Accused No. 2), Krishna Shetty (Accused No. 4), Moganna Shetty (Accused No. 1) and Narayana (Accused No. 5) were injured. Their wound certificates are marked at Ex. P13 to P16 in the matter on hand. From the above, it is clear that there was counter complaint and in the said matter also, four persons sustained injuries though simple in nature. However the Police filed ''B'' report in Crime No. 109/2008.

Sri S.B. Pavin, learned amicus curiae appearing on behalf of Accused No. 3 while assisting the Court argued that the trial Court is justified in acquitting Accused No. 3; however the trial Court is not justified in convicting other accused; the origin and genesis of the criminal case is suppressed by the Investigating Officer; the investigation was conducted in one sided manner and consequently, the true facts are suppressed; the incident has not occurred as projected by the prosecution; since the origin and genesis of the prosecution case is shrouded in mystery, the benefit of doubt should enure to the accused; alternatively, he submits that the Court may remove chaff from grain and convict only the real culprit against whom concrete material is found.

The said arguments of learned amicus curiae are supported by Sri Nataraj, learned advocate appearing on behalf of Accused Nos. 1,2 and 4.

Sri Vijaykrishna Bhat, learned advocate appearing on behalf of Accused No. 5 drawing the attention of the Court to the injuries sustained by the injured witnesses submits that there are no corresponding injuries which could have been resulted by assault with a club, which was held by Accused No. 5. According to him, Accused No. 5 is falsely implicated by the prosecution.

There were two groups in the village; one group is headed by Gavinaika (PW.3) and another group is headed by Krishna Shetty (Accused No. 4). The group of the accused is dominated by one community, whereas the group of injured prosecution witnesses is dominated by other community. Thus it is clear that there was discord between the two communities. A suggestion is also made by the defence that PW.2 was dealing with liquor business illegally and in that regard, complaints were also lodged against him. Thus it is clear that the village was virtually divided into two groups on different grounds. The motive as projected by the prosecution specifically is that injured prosecution witnesses were helping the family of Smt. Vasantha, who was taken away by one Nagesha s/o Shivanna, whereas the accused were close friends of Nagesha s/o Shivanna and were helping him and in that regard also there was ill-will between the accused and the injured prosecution witnesses. While evaluating the entire material on record, we have kept in mind the aforementioned factors inasmuch as the defence contends that the eye witnesses have tried to implicate as many persons as possible from one family.

Accused Nos. 1, 4 and 5 are sons of one Lakkashetty and Accused Nos. 2 and 3 are sons of Accused No. 1. All the male members of one family were implicated in the crime. In that context, it is contended by Sri Pavin, learned amicus curiae that the prosecution has not come before the Court with clean hands and it has implicated all the male members of one family though certain of the family members are innocent.

PWs. 1,2,3 and 4 are eye witnesses to the incident. Among them, PWs.1 and 2 are injured eye witnesses. PW.1 has sustained grievous injuries, whereas PW.2 has sustained simple injury. Ex. P5 is the wound certificate of PW.1 and Ex. P4 is the wound certificate of PW.2.

PWs.5 and 9 are the witnesses for scene of offence panchanama - Ex. P2. Both of them have turned hostile.

PW.6 shifted the injured to the hospital. Though he came to the spot, he failed to identify the victim.

PW.7 is the Resident Medical Officer who treated the complainant - Somashekhara and PWs.1 & 2 and issued the wound certificates as per Ex. Ps.6, 5 and 4 respectively.

PW.8 is the doctor. He has deposed about recording of statement of the complainant as per Ex. P1 in the hospital. He has identified his signature in proof of he being present at the time of recording the statement by the Police.

PW.10 is the Police Sub-Inspector of Yelwala Police Station. He registered the complaint based on Ex. P1 lodged by Somashekhara. He conducted part of the investigation and handed over the investigation to some other Investigating Officer. However the Investigating Officer who completed the investigation and laid the charge sheet is not examined.

Accused No. 2 is examined as DW.1. The defence of the accused as could be seen from the evidence of DW.1 is that the complainant and the two injured alongwith group of people came to the house of the accused and assaulted them. Hence according to the accused, the injured prosecution witnesses are aggressors. From the defence taken by the accused, it is clear that the place of incident, the time of incident and presence of the accused and injured prosecution witnesses is not in dispute. But the question still remains to be decided is as to which of the accused have really participated in the crime and which of the accused were innocent.

By the time, the trial commenced, the complainant - Somashekhar has expired. Thus the complaint - Ex. P1 was marked through PW.1 - Jagadeesha, the brother of the complainant. PW.1 has deposed that at about 8.30 p.m. when he was going on the road situated behind the house of Accused No. 4, all the five accused came near him; Accused Nos. 1 and 2 were holding choppers in their hands; Accused Nos. 4 and 5 were holding the clubs in their hands; Accused No. 1 assaulted him (PW.1) with chopper and Accused No. 2 assaulted him (PW.1) on his neck; However, he (PW.1) avoided such blow by protecting himself by raising his left hand and hence the blow fell on his left palm, consequent upon which his left ring finger was amputated; so also the complainant - Somashekhar was assaulted by Accused No. 2 with chopper on his right ear; consequently, right ear pinna of deceased Somashekara severed. PW.1 has also deposed that Accused Nos. 3,4 and 5 assaulted him and other injured mercilessly with chopper. It is specified that Accused No. 4 who was holding the club snatched the chopper from Accused No. 2 and assaulted, whereas Accused No. 3 who was unarmed snatched chopper from his father (Accused No. 1) and assaulted on PW.2. The evidence of PW.1 practically is in consonance with the averments made in the complaint lodged by Somashekhar. His evidence is supported by the evidence of PWs.3,4 and 5.

All the eye witnesses have deposed about the complicity of each of the accused in one way or the other. Though at the first look, it appears that the evidence of these eye witnesses is consistent and cogent, in our considered opinion, the eye witnesses have narrated parrot like story. It is not uncommon to implicate as many accused as possible if there is serious grouse against one family. It is also relevant to note that the versions of the eye witnesses are supported by the medical evidence on record.

The incident has admittedly taken place at about 8.30 p.m. on 10.8.2008 at Sagarakatte village. The scene of offence is about 10 kilometers from the Police Station. It is also admitted by PW.3 (eye witness) that the injured was taken to Yelwala Police Station immediately after the incident.; however the Police instructed the injured and the persons who were accompanying them to admit the victim to the hospital for treatment and hence the injured were taken to B.M. Hospital, Mysore. The medical records reveal that the injured Somashekhara and PWs.1 and 2 were admitted to hospital at about 8.50 p.m. on 10.8.2008, which means the injured were admitted to the hospital within about 20 minutes of the incident. At the time of admission itself, PW.1 and PW.2 gave the history of assault that Accused Nos. 2 and 4 assaulted them with sickle at about 8.30 p.m. However at the time of admission to hospital, the complainant - Somashekar has stated that Accused Nos. 2,4 and 5 assaulted him with sickle and stone. The intimation of admission of the victim to the hospital was sent by hospital authorities to the Police Station at 8.50 p.m. itself on 10.8.2008. Despite the same, no action was taken by the Police to visit either the spot or the hospital for recording the statement of the injured to put the criminal law into motion. PW.10 came to the hospital only at about 10.00 a.m. on 11.8.2008 i.e., on the next date of the incident and recorded the statement of Somashekar upto 10.45 a.m. in the hospital and the crime came to be registered at 11.00 a.m. The delay in lodging the complaint by the injured or the delay on the part of the Police in not approaching the hospital immediately after getting the medico legal intimation from the hospital authorities has remained unexplained. Though the Police Officer is examined as PW.10, he has not chosen to explain such delay on his part in recording the complaint. As aforementioned, undisputedly the injured was taken to hospital via Police Station. At that point of time, the Police authorities had directed the persons accompanying the injured to take him to the hospital for treatment. Thus it is very well known to the Police Authorities about the crime in question at about 8.30 p.m. itself on 10.8.2008. Even otherwise, as could be seen from the medico legal intimation - Ex. P7, the same was sent by the hospital authorities to the Police Station at 8.50 p.m. by muddam i.e., medico legal case intimation was sent through a person. Yelwala Police Station is almost at the periphery of Mysore city wherein the industrial lay-outs etc., have come up. The hospital is situated in Mysore city. Inspite of the same, the Police did not take any steps to get the case registered. Immediately after seeing the injured in the Police Station at about 8.30 p.m. on 10.8.2008, the Police could have registered the crime suo motu or proceeded to the scene of offence or proceeded to the hospital for recording the statement of the injured. This lapse on the part of the Investigating Officer will have to be viewed seriously under the facts and circumstances of the case. Further, according to the defence, the injured were politically powerful and hence the complaint lodged by the accused against the injured which came to be registered in Crime No. 109/2008 ended in ''B'' report. We have already observed that there are two groups in the village and one group is of the accused and another group is of the injured witnesses. Having regard to the aforementioned facts and circumstances, we are of the opinion that the prosecution wanted to buy time in order to implicate as many accused as possible. Even otherwise, there is no reason as to why the Police did not register the complaint at 8.30 p.m. itself on 10.8.2008. In this context, the arguments of Sri Pavin, learned amicus curiae that the complaint and the prosecution case is well thought over till 10.00 a.m. on the next day, assumes importance. We find that such arguments deserve to be accepted.

The wound certificates - Ex. P4, Ex. P5 and Ex. P6 and the medico legal intimation - Ex. P7 undisputedly reveal that the injured were admitted to hospital at about 8.50 p.m. on 10.8.2008 i.e., within 20 minutes after the incident. At the time of admission itself, PWs.1, 2 and the complainant - Somashekara themselves have given the history of assault. It is specifically admitted by doctor -PW.7 that PWs.1 and 2 have given common history of assault, which means the history as recorded by the doctor is not given by any of the third party, but it must have been given by the injured themselves. That is the first version of the injured which was given by them in the hospital. The trial Court, in our considered opinion is justified in relying upon the wound certificates and the history recorded by the doctor at the time of admission of the patient to the hospital. It is specified by PWs.1 and 2 that Accused Nos. 2 and 4 assaulted them with sickle, so also it is specified by the complainant - Somashekar that he was assaulted by Accused Nos. 2,4 and 5. They did not mention the names of either Accused No. 1 or Accused No. 3 immediately after the incident, that too before the doctor. The history as recorded by the doctor may not play much role in such matters, particularly when the case of the prosecution depends upon the ocular testimony of the witnesses. In the matter on hand, as aforementioned, though the prosecution witnesses have narrated parrot like story, which appears to be prima-facie consistent, we find that their versions are exaggerated and they tried to implicate as many persons as possible, that too from one family. Accused No. 3 was student during the relevant point of time. He has stated in his statement recorded under Section 313 of Cr.PC that he had been to the tuition classes during the relevant point of time; however he is falsely implicated in the crime. From other material or record, we also find that his presence and consequently his participation in the crime is doubtful. Though Accused Nos. 1,2,4 and 5 sustained certain simple injuries in the very accident as is clear from the Exhibits 13 to 16, Accused No. 3 has not sustained any injuries, which means his presence on the spot may be doubtful. Be that as it may, we find from the evidence of the prosecution witnesses insofar as it relates to alleged overt acts of Accused No. 3 is concerned, is quite contradictory. PW.1 has deposed that Accused No. 3 assaulted on PW.2, whereas PW.2 says that Accused No. 3 snatched the chopper from the hands of his father (Accused No. 1) and assaulted on him. Admittedly, in the matter on hand, only two persons were holding the chopper and two persons were holding clubs and Accused No. 3 was not holding any weapon. Even according to the prosecution, Accused No. 3 is not holding any weapon. However the evidence on record reveals that Accused No. 3 snatched chopper from the hands of his father and thereafter assaulted. This version of the prosecution witnesses appears to be exaggerated and an after thought. Therefore in our considered opinion, the trial Court is justified in acquitting Accused NO.3

We also find that no reliable material is found as against Accused No. 1. As aforementioned, the first version as stated by all the three injured in the hospital before the doctor does not reveal the presence of either Accused No. 1 or Accused No. 3. Accused No. 1 was aged about 57 years at the time of the incident. The incident has taken place behind the house of Accused No. 4. The house of Accused No. 1 is situated in a different area at a distance from the house of Accused No. 4. Though it is specified by the injured eye witnesses before the Court that Accused No. 1 also participated in the crime by assaulting with chopper, the same may be exaggerated in view of the fact that his name does not find place in the history given by the injured before the doctor at the earliest point of time. This has to be viewed from another angle that the complaint came to be registered after about 14 hours of the incident. Though the Police knew very well about the crime in question at 8.30 p.m. itself on 10.8.2008, it seems they took sufficient time to create story in collusion with the group of the injured eye witnesses, which is headed by PW.3 and registered the complaint at 11.00 a.m. on 11.8.2008. Though PW.3 is stated to be the eye witness to the incident in question, he did not choose to save the life of any of the injured witnesses and he was simply an onlooker. Admittedly, PW.3 is the leader of the group of injured witnesses. Thus his presence appears to be unnatural. For all the aforementioned reasons, we find that the prosecution has not proved its case against Accused No. 1 beyond reasonable doubt. Any amount of suspicion cannot be equated to the proof. We find that the prosecution has not proved the case against Accused No. 1 beyond reasonable doubt. Hence Accused No. 1 is also entitled to be acquitted.

It is the further case of the prosecution that Accused No. 5 came to the spot holding the clubs and he assaulted the injured mercilessly. The injured witnesses have even proceeded to an extent of deposing that Accused No. 5 has assaulted all over the body including the head, but none of the injuries sustained by PWs.1 and 2 or complainant could be caused by user of clubs. The complainant and PWs.1 and 2 have sustained incise wounds, which could be caused by sharp cutting weapons. However it is also to be observed here itself that the complainant Somashekar has sustained two small abrasions which also could have been caused by push and pull or falling on the ground. Since the medical evidence does not corroborate the testimony of the eye witnesses with regard to complicity of Accused No. 5, in our considered opinion the trial Court is not justified in convicting Accused No. 5, more particularly when the version of the eye witnesses with regard to the role of Accused No. 5 is highly contradictory. We may mention here itself that in paragraph 90 of the Judgment of the Court below, the trial Court has even observed that there is no ample material as against Accused No. 5. Despite the same, the trial Court has strangely proceeded to convict Accused No. 5 without any valid reason. We agree with the observation made by the Court below that there is no reliable material as against Accused No. 5. Hence Accused No. 5 deserves to be acquitted inasmuch as the prosecution has not proved its case against Accused No. 5.

In our considered opinion, the prosecution has proved its case in its entirety as against Accused Nos. 2 and 4. Their names appear in the history given by the injured eye witnesses at the earliest point of time in the hospital. Admittedly, the injured themselves have given such history before the hospital within about 20 minutes of the incident. The versions of the eye witnesses insofar as the assault by Accused Nos. 2 and 4 deserves to be accepted. The evidence of the eye witnesses, more particularly injured eye witnesses PWs.1 and 2 is consistent, cogent and reliable insofar as it relates to the complicity of Accused Nos. 2 and 4 is concerned. Accused No. 2 has assaulted with chopper, whereas Accused No. 4 has assaulted with club. However he snatched the chopper during the incident and assaulted once again. There are three injured. All the three have sustained chop wounds, which can be caused by chopper (sharp cutting weapon). Left ring finger of PW.1 is amputated. Ear Pinna of Somashekhar, (who is now expired) is severed. The evidence of the eye witnesses is supported by the medical evidence on record. Therefore the trial Court is justified in convicting accused Nos. 2 and 4 for the offences under Sections 324 and 326 r/w Section 34 of Indian Penal Code.

We have heard the learned advocates on the question of sentence. The advocate appearing on behalf of Accused Nos. 2 and 4 submits that the injured as well as the accused are relatives and that the incident has taken place because of Smt. Vasantha''s episode and hence the accused may be shown leniency. The said submissions are opposed by the learned Government Pleader.

Having regard to the totality of facts and circumstance of the case, we pass the following order:

"1. The impugned Judgment & Order dated 23rd July 2011 passed by the trial Court in S.C. No. 124/2009 insofar as it relates to acquitting Accused No. 3 - Manja for all the offences with which he is charged stand confirmed.

Accused No. 1 - Moganna Shetty and Accused No. 5 -Narayana are acquitted of all the charges levelled against them. The impugned Judgment and Order passed by the trial Court insofar as it relates to convicting Accused Nos. 1 and 5 stand set aside.

The impugned Judgment & Order passed by the trial Court insofar as it relates to convicting Accused No. 2 - Keshava and Accused No. 4 - Krishna Shetty for the offences under Sections 324 and 326 r/w 34 of IPC stand confirmed.

Accused No. 2 - Keshava and Accused No. 4 - Krishna Shetty are sentenced to undergo imprisonment for one year and to pay fine of Rs. 50,000/- (Rupees fifty thousand only) each. In default of payment of fine, each of the Accused Nos. 2 and 4 shall undergo further imprisonment for one year. In case of recovery of fine, an amount of Rs. 40,000/- shall be paid to the injured PW.1 - Jagadeesha and another amount of Rs. 40,000/- shall be paid to the legal representatives of the complainant - S.G. Somashekara and the balance of Rs. 20,000/- shall vest with the State.

Accused Nos. 2 and 4 are entitled to the benefit of set off as provided under Section 428 of Code of Criminal Procedure.

Bail bonds, if any of Accused Nos. 1 and 5 shall stand cancelled.

Accused No. 2 - Keshava and Accused No. 4 - Krishna Shetty shall surrender before the trial Court to serve the remaining sentence."

Accordingly, Criminal Appeal No. 1167/2011 filed by the State stands dismissed, Criminal Appeal No. 850/2011 filed by Accused No. 5 is allowed and Criminal Appeal No. 842/2011 is partly allowed to the aforementioned extent.

We place on record the valuable services rendered by Sri S.B. Pavin, learned amicus curiae. In recognition thereof, we direct the Registry to pay Rs. 10,000/- (Rupees ten thousand only) as honorarium to the learned amicus curiae.