State vs M. Shivananda and Others

B.V. Pinto, J.—This appeal has been filed by the State challenging the judgment dated 19.7.2004 passed by the Addl. Sessions Judge, FTC-I, Kolar in S.C. No. 75/98 acquitting the Respondents of the offences Under Sections 143, 147, 148, 149, 427 302 and 120(B) of IPC r/w Section 149 IPC.

It is the case of the prosecution that on 21.8.1997 at 9.00 pm at Karapanahalli village, the accused persons formed themselves into an unlawful assembly armed with deadly weapons with the common object of assaulting CW11- Nanjundappa and thereby they are alleged to have committed an offence punishable Section 148 of IPC. It is further alleged that they went near the house of Ramakrishnappa, and with an intention to cause death of Venkataramaiah, assaulted him with chopper, clubs and caused him grievous injuries and as a result of which, Venkataramaiah died in the hospital on 24.8.97. Thereby they are alleged to have committed an offence Under Sections 143, 147, 148, and 302 IPC. It is further alleged that the accused persons in furtherance of their common intention, assaulted CW 2- Subbamma, CW8 Gopalaiah, CW 9 Amaranath, CW 10 Krishnaiah and CW 15 Krishnappa and voluntarily caused them hurt and thereby they are alleged to have committed an offence Section 324 r/w Section 149 IPC. It is further alleged that on the said date, time and place, the accused pelted stones on the house of CW 2 - Subbamma and caused damage and thereby they are alleged to have committed an offence Section 427 IPC.

The prosecution in order to prove its case, has examined in all 22 witnesses and got marked Exs P1 to P 26 and produced M Os 1 to 19. The defence of the accused is one of the total denial and they examined DW1 to DW4 in their defence and also got marked Ex.D1 to D 18 being the portion of the statement of PW2, 4, 6, 10 and 13 before the police.

After hearing the prosecution and the defence, the learned Sessions Judge was pleased to hold that the prosecution has not proved its case beyond reasonable doubt. Regarding the nature of case against the accused persons, there is discrepancy in the oral and medical evidence regarding injuries suffered by Venkataramanappa and since there is no corroboration to the version of the witnesses, the accused were acquitted of the charges levelled against them. The State has filed this appeal.

Heard Sri G. Bhavani Singh, learned Addl. SPP and Sri A.H. Bhagawan learned Counsel for the respondents - accused.

The learned Counsel for the Respondents -accused submitted that out of the eye witnesses, P Ws 3, 5, 6, 7 and 8 have turned hostile to the case of the prosecution and it is only P Ws 1, 2, 4, and 10 have spoken regarding the incident. It is seen that in the chief examination of PW1, he has stated regarding the assault made by the accused persons but in the cross examination he has stated that he could not notice that the accused persons have assaulted the deceased. So far as PW2 and PW 10 are concerned, though they are examined as eye witnesses, they have stated that they have seen the incident from the house of Nanjundappa which according to DW1 is at the distance of about 300 feet away from the house of Ramakrishnappa. PW2 and PW 10 witnessed the incident from the distance of 300 feet. From the admission of both eye witnesses, the time was 9.00 pm and therefore, their evidence cannot be taken into account for the purpose of conviction.

So far as PW 13 is concerned, her statement is recorded by the police after many days and therefore, her version cannot be held to be corroborating evidence of other witnesses. In the evidence of PW 4 in the cross examination before the Court he has stated that there are cases pending between themselves and the accused persons in respect of civil claim in O.S. No. 186/00. He further says that he is not aware whether his uncle Eyatappa has filed the suit in O.S. No. 344/95 against A3 but admits there is another RA filed by his in R.A. No. 57/2002 before the Asst. Commissioner against wife of A3. In view of the enmity between PW 4 and the accused persons, the evidence of PW 4 become tainted. From the materials on record, it is seen that the incident has happened at 9.00 pm. The version of PW1, 2, 4, 10 and 13 are not corroborating with each other and none of them have specifically stated the eye witness account in so far as the presence of the accused and the weapon used for the commission of the offences.

Under the circumstances, the learned Sessions Judge has held that the medical evidence is not corroborating with the eyewitness account and hence does not call for interference. In that view of the matter, we are of the opinion that the judgment of the learned Sessions Judge is based on evidence on record and is neither capricious nor against the settled principles of law. In the circumstance, we hold that the order of acquittal passed by the learned Sessions Judge deserves to be upheld. Accordingly, this appeal is liable to be dismissed and hence, the appeal is dismissed.