State by Rural Police and Others vs Rangappa and Others

Mohan M. Shantana Goudar, J.—The judgment and order dated 28.3.2011 passed by the Fast Track Court, Bhadravathi in Sessions Case No. 112/2007 is the subject matter of these two appeals.

By the impugned judgment, the trial Court has convicted accused Nos. 1, 2, 5 and 8 for the offence punishable under Section 324 of IPC. Accused No. 12 is convicted for the offences punishable under Sections 324 and 448 of IPC. Accused No. 3 is convicted for the offences punishable under Sections 326 and 448 of IPC and accused No. 17 is convicted for the offence punishable under Section 326 of IPC. The other accused who are charged with the said offences are acquitted by the trial Court.

State has preferred Crl. A. No. 640/2011 questioning the order of acquittal passed in favour of accused Nos. 4, 6,7, 9, 10, 11, 13, 14, 15, 16, 18, 19 and 20 whereas, the convicted accused have preferred Crl. A. No. 421/2011 praying for their acquittal. Both the appeals are heard together.

Since Sri. B.S. Prasad, learned advocate has remained absent, we had requested Sri. Sampangiramaiah, learned advocate to argue the matter on behalf of the accused both convicted and acquitted and to assist the Court. Heard the learned Government advocate as well as the learned Amicus Curiae. Perused the records.

Case of the prosecution in brief is that due to prior rivalry between the accused group and complainant''s group, the incident in question has taken place at about 8.30 p.m. on 23.11.2003 at Padmenahalli village, Bhadravathi Taluk. Accused No. 2 Ananda had stolen a cow at an earlier point of time and in that regard panchayaths were held and accused No. 2 was levied with fine of Rs. 7,000/-. Despite the same, accused No. 2 did not pay the fine levied by panchayath and he started evading payment of fine. At about 8.30 p.m. on 23.11.2003, all the accused including accused No. 2 came in front of the house of Somappa (P.W. 1) and started abusing him in filthy language; P.Ws. 2 and 5 being the brothers of P.W. 1 also came near the spot after hearing the quarrel, in as much as, those two persons were proceeding to attend a function at Mallikarjunaswamy temple during the relevant point of time. All the accused trespassed into the house of Somappa (P.W. 1) and started assaulting the inmates of the house of Somappa and his relatives, consequent upon which, P.Ws. 1 to 10 and P.W. 20 sustained certain injuries, out of them P.Ws. 3 and 9 sustained fractures. P.W. 3 sustained fracture of patella whereas, P.W. 9 sustained fracture of fibula. All other injured i.e., P.Ws. 1 and 2, 4 to 8, P.W. 10 and P.W. 20 sustained simple injuries.

In the very incident, it seems the group of the accused also sustained certain simple injuries. Consequently, the injured persons in this matter as well as the injured accused took treatment in the hospital. One Mr. Huchchappa (C.W. 1) lodged the complaint as per Ex. P17 in Bhadravathi Rural Police Station, which came to be registered in Crime No. 259/2003 against 20 accused whereas, one of the accused lodged the complaint against the injured in this case in the very police station which came to be registered in Crime No. 260/2003. The Assistant Sub-Inspector of Police, Bhadravathi Rural police station (P.W. 21) registered Crime No. 259/2003 based on the complaint lodged by Hucchappa for certain offences including the offence under Section 307 of IPC. The complaint was lodged at 2.00 a.m. on 24.11.2003. Prior to lodging of the complaint, the injured were taken to Bhadravathi Government hospital and thereafter the injured P.W. 3 and P.W. 9 were taken to Mc. Gann hospital, Shimoga for treatment. The first information report reached the jurisdictional Magistrate at 10.45 a.m. on 24.11.2003.

The counter complaint lodged by the accused No. 1 herein was registered in Crime No. 260/2003 by another Assistant Sub-Inspector of Police namely Sangappa (P.W. 16) in Bhadravathi Rural police station. In the said matter the accused therein i.e., the injured in this matter are acquitted.

The accused in this case were charged with the offences punishable under Sections 143, 144, 147, 148, 324, 326, 427, 448, 506 and 307 of IPC r/w Section 149 of IPC.

In order to support its case, the prosecution in all examined 22 witnesses and got marked 20 exhibits and 19 material objects. On behalf of the defence no witness is examined, but marked Ex. D1. The trial Court, on evaluation of material on record, acquitted accused Nos. 4, 6, 7, 9, 10, 11, 13, 14, 15, 16, 18, 19 and 20 and convicted accused Nos. 1, 2, 5, 8, 12 for the offence under Section 324 of IPC, whereas, accused Nos. 3 and 17 are convicted for the offence under Section 326 of IPC.

Learned Amicus Curiae has taken us through the entire material on record and the judgment of the Court below during the course of his arguments. He contended that even if the entire case of the prosecution is believed, each of the accused is entitled for acquittal, in as much as there are no specific overt acts forthcoming in the evidence of the prosecution witnesses against the accused; it was accused No. 2 who had come to the spot with chopper and because of whom the incident has taken place; all other accused did not have any motive for commission of the offence. The offence has taken place on the spur of the moment and without any premeditation. All the accused except accused No. 2 are innocent; except the two witnesses P.Ws. 3 and 9 none of the witnesses have suffered any grievous injuries; though the injuries sustained by P.Ws. 3 and 9 are technically can be called grievous in nature, but are not so serious; the accused and the prosecution witnesses are relatives inter se and they must have forgotten their differences by lapse of time, in as much as, the offence has taken place about 12 years prior to this day. He further submits that the case on hand may be due to political pressure. On these among other grounds, he prays for acquittal of the accused.

Per-contra, Sri. Chetan Desai, learned Government Advocate supported the order of conviction passed against certain of the accused. He also vehemently argued that the acquitted accused are also liable to be convicted, in as much as all such acquitted accused also participated in the crime in question; since Section 149 of IPC is clearly attracted under the facts and circumstances of the case, according to him, all the accused who were charged with the offences are liable to be convicted.

Before proceeding further it would be relevant to note the deposition of each of the witnesses in brief which is as under:

"P.Ws. 1 to 10 and P.W. 20 are the injured eyewitnesses. All of them have sustained either grievous or simple injuries. As aforementioned P.Ws. 3 and 9 have sustained grievous injuries, whereas P.Ws. 1, 2, 4 to 8, P.Ws. 10 and 20 have sustained simple injuries. Their evidence is supported by the evidence of the Doctors (P.Ws. 14 and 17) who treated the injured. P.Ws. 11 and 13 are the witnesses for scene of offence panchanama Ex. P1. However, both of them have turned hostile to the case of the prosecution. P.W. 12 is another eyewitness to the incident. However, he has also turned hostile to the case of the prosecution. As aforementioned, P.Ws. 14 and 17 are the doctors who examined the injured eyewitnesses and issued the wound certificates as per Exs. P4, P6 to P15. P.Ws. 15 and 22 are the witnesses for seizure panchanama Ex. P5 under which M.O. No. 19 chopper was said to have been seized. However, both these witnesses have turned hostile to the case of the prosecution.

P.W. 16 is the Assistant Sub-Inspector of Police who registered Crime No. 260/2003 based on the counter complaint lodged by accused No. 1. After investigation he has laid the charge sheet against the accused. However, the said crime ended in acquittal.

P.W. 18 is another eyewitness. He has also turned hostile to the case of the prosecution.

P.Ws. 19 and 20 are the other two eyewitnesses. Both of them have supported the case of the prosecution.

P.W. 21 is the Assistant Sub-Inspector of Police attached to Bhadravathi Rural Police Station who registered Crime No. 259/2003 based on complaint lodged by Hucchappa (C.W. 1). After completion of investigation, P.W. 21 laid the charge sheet in the matter on hand against 20 accused persons."

From the aforementioned it is clear that the entire case of the prosecution mainly depends upon the ocular testimony of injured eyewitnesses P.Ws. 1 to 10 as well as versions of other two eyewitnesses P.Ws. 19 and 20. Though Hucchappa (C.W. 1) has lodged the complaint and was eyewitness to the incident, he expired during the pendency of the matter before the trial Court and therefore, he was not examined before the Court as prosecution witness. The complaint is marked through investigation officer.

As aforementioned, the incident has taken place at 8.30 p.m. on 23.11.2003 at Padmenahalli village in Bhadravathi taluk. The complaint came to be lodged at 2.00 a.m. on 24.11.2003. The first information report reached the jurisdictional magistrate at 10.45 a.m. on 24.11.2003. In this context, learned Amicus Curiae submits that the complaint was lodged belatedly and it reached the Magistrate after about 8 hours of registration of the crime and therefore there was lot of scope for the prosecution to implicate as many accused as possible and concoct the case. According to him, the innocent persons also must have been implicated in the crime taking advantage of such delay on the part of the investigation officer. Though such submission prima facie appears to be attractive, we decline to accept the said submission of learned Amicus Curiae, in as much as immediately after the incident all the injured eyewitnesses were taken to Bhadravathi Government Hospital for treatment. Thereafter, the injured P.W. 3 and P.W. 9 were taken to Mc. Gann Hospital, Shimoga for treatment. The first priority in such matters would be to save the lives of the people and not to lodge the complaint immediately. We hasten to add here itself that the complaint should be filed at an early point of time to avoid any confusion in the mind of the Court and to arrive at a just conclusion. Concoction can be avoided in case complaint is filed as early as possible. Be that as it may, since we find that the complaint was lodged immediately after the incident i.e., within 5 1/2 hours from the time of incident and as the same has reached the jurisdictional magistrate within eight hours, the delay, if any, may not play much role in this matter particularly, in view of the consistent ocular testimony of the injured eyewitnesses.

The Court cannot ignore the versions of the injured eyewitness, in as much as the injured eyewitness would not normally leave the actual culprit, for implicating the persons who do not participate in the crime. We find from the judgment of the trial Court that the trial Court has meticulously assessed the evidence of each of the eyewitnesses and has tried to remove the grain from the chaff and consequently has convicted only the persons who actually participated in the crime.

The complaint Ex. P17 discloses that all the accused came in a group and trespassed into the house of Somappa (P.W. 1) and started assaulting the inmates of the house of Somappa as well as the persons who tried to pacify the quarrel. Admittedly, the incident has taken place inside and just outside the house of P.W. 1, which means, the accused had come to the house of P.W. 1 and had taken law into their hands. Thus, it cannot be said that the injured eyewitnesses had instigated the accused to commit the crime; on the other hand, the facts clearly reveal that the accused came to the house of P.W. 1 and started assaulting P.W. 1 and all other inmates of house of P.W. 1 apart from the persons who had gathered there for pacifying the quarrel.

The complaint Ex. P17 further discloses that the accused after coming to the house of P.W. 1 started quarrelling with him and they abused him and others in filthy language. Thereafter, all the accused started assaulting P.Ws. 1 to 10, P.W. 20 and others who sustained grievous as well as simple injuries. The incident cannot be disputed in the matter on hand, in as much as accused No. 1 has also filed the complaint which came to be registered in Crime No. 260/2003. The scene of offence also cannot be disputed. Thus, the complaint makes it clear as to how the incident has taken place and as to where the incident has taken place. It implicates all the accused in the crime.

The version as found in the complaint Ex. P17 is fully supported by the ocular testimony of P.Ws. 1 to 10. All these witnesses are the injured eyewitnesses. The versions of injured eyewitness is supported by the evidence of other two eyewitnesses P.Ws. 19 and 20.

We have meticulously perused the versions of each of the eyewitnesses including the evidence of P.Ws. 3 and 9 who sustained grievous injuries. All the injured eyewitnesses have specifically implicated accused Nos. 1, 2, 3, 5, 8, 12 and 17 in the crime. There cannot be any dispute that there are some minor variations in the version of eyewitnesses. When the injured eyewitnesses were assaulted by a mob of 20 persons it may not be possible for each of the witnesses to depose specifically against each of the accused. In the matter on hand, the version of the eyewitnesses would clearly reveal that all the accused came near the house of P.W. 1 and started abusing him and his relatives including the inmates of the house of P.W. 1. All of them started assaulting P.W. 1 and others, consequent upon which, P.Ws. 1 to 10 and 20 sustained injuries. In this view of the matter, there are bound to be minor variations in the evidence of the eyewitnesses, the same cannot be made much of, in view of facts and circumstances of this case. It is not in dispute that each of the accused were known to each of the injured eyewitness. It is also not in dispute that the incident has taken place due to prior rivalry and both the groups are from the same village. Thus it is clear that the accused are not strangers to the prosecution witnesses.

We find that the evidence of injured eyewitnesses is consistent, cogent and reliable. All of them have consistently deposed that accused Nos. 3 and 17 have assaulted P.Ws. 3 and 9 consequent upon which, P.Ws. 3 and 9 sustained grievous injuries. The injured eyewitnesses have also deposed that accused Nos. 1, 2, 5, 8 and 12 have assaulted other injured witnesses, consequent upon which, the other injured witnesses have sustained certain simple injuries.

The trial Court has while appreciating the evidence, tried to concentrate on the overt acts of each of the accused and has separated the accused who appear to be innocent. The reasons assigned for acquittal of certain of the accused by the trial Court appear to be plausible. Even on re-appreciating the material on record, we do not find any ground to interfere in the order of acquittal passed against certain of the accused. So also, the trial Court is justified in convicting accused Nos. 3 and 17 for the offence under Section 326 of IPC in as much as, their evidence is consistent in respect of assault on P.Ws. 3 and 9 who sustained grievous injuries. So also, the evidence is consistent against accused Nos. 1, 2, 5, 8 and 12 in as much as they caused certain simple injuries on P.Ws. 1 to 10 and P.W. 20. Therefore, the trial Court is justified in convicting them for the offence under Section 324 of IPC.

We find that the evidence of each of the eyewitnesses including the injured eyewitness is blemishless. Their presence on the spot cannot be disputed in as much as they have sustained injuries. Immediately after the incident they were taken to the hospital and were treated by the two doctors P.Ws. 14 and 17.

P.W. 14 is the Doctor who examined the injured P.W. 1 at Mc. Gann Hospital, Shimoga and issued wound certificate as per Ex. P4. P.W. 17 is another Doctor who examined and treated P.Ws. 1 to 10 and P.W. 20 in Government Hospital, Bhadravathi. The evidence of doctor P.W. 17 clearly reveals that he examined the injured eyewitness from 11.30 p.m. on 23.11.2003. The incident has taken place at about 8.30 p.m. which means that all the injured were taken to Bhadravathi Government Hospital immediately after the incident and they were treated in Bhadravathi Government hospital. Only thereafter, the complaint came to be lodged by one Mr. Hucchappa who is no more and who was not injured in the incident. Thus, practically the evidence of the injured eyewitnesses is fully supported by the medical evidence.

On reconsideration of the entire material on record, we find that the judgment of the trial Court in acquitting accused Nos. 4, 6, 7, 9 to 11, 13 to 16, 18 to 20 appears to be just and proper. In addition to the same, we also find that the trial Court is justified in convicting accused Nos. 1,2, 5, 8 and 12 for the offence under Section 324 of IPC and accused Nos. 3 and 17 for the offence under Section 326 of IPC.

The trial Court is also justified in convicting accused Nos. 3 and 12 for the offence under Section 448 of IPC in as much as, the evidence on record clearly reveals that these accused have trespassed into the house of P.W. 1.

However, we find that the trial Court may not be justified in imposing higher sentence under the facts and circumstances of the case. The trial Court has imposed sentence of one year for the offence under Section 324 of IPC and six months for the offence under Section 448 of IPC. The trial Court is also in our considered opinion is not justified in imposing two years rigorous imprisonment for the offence under Section 326 of IPC as against accused Nos. 3 and 17.

The group of accused as well as the group of complainant is from the same village. They may be relatives also. The incident has taken place on the spur of the moment and that too for a trivial reason. Admittedly, all the accused are agriculturists. The incident has taken place in the year 2003. By this time both the parties must have forgotten their differences. Having regard to the totality of the facts and circumstances, we are of the opinion that interest of justice would be met if accused Nos. 3 and 17 are sentenced to undergo simple imprisonment for one month for the offence under Section 326 of IPC whereas accused Nos. 1, 2, 5, 8 and 12 are sentenced to undergo imprisonment for 15 days for the offence under Section 324 of IPC. Accused Nos. 3 and 12 are also liable to be sentenced to undergo simple imprisonment for 15 days for the offence under Section 448 of IPC. However, the accused shall be imposed with heavy fine in order to compensate the injured witnesses.

As aforementioned, P.Ws. 3 and 9 have sustained fractures whereas, other injured witnesses have sustained certain simple injuries. In view of the above, following order is made:

"ORDER

(a) The judgment and order of conviction passed by the trial Court convicting accused Nos. 1, 2, 5 and 8 for the offence under Section 324 of IPC stands confirmed.

(b) The judgment and order of conviction convicting accused No. 12 for the offences under Sections 324 and 448 of IPC stands confirmed.

(c) The judgment and order of convicting accused Nos. 3 and 17 for the offence under Section 326 of IPC stands confirmed. So also, the judgment and order of conviction convicting accused No. 3 for the offence under Section 448 of IPC also stands confirmed.

(d) Accused Nos. 1, 2, 5, 8 and 12 are hereby sentenced to undergo simple imprisonment for 15 days for the offence under Section 324 of IPC and they are also sentenced to pay fine of Rs. 5,000/- each. In default of payment of fine, accused shall undergo imprisonment for another 15 days.

(e) Accused Nos. 3 and 12 are sentenced to undergo simple imprisonment for 15 days for the offence under Section 448 of IPC and are sentenced to pay fine of Rs. 5,000/- each for the said offence. In default of payment of fine, accused shall undergo imprisonment for another 15 days.

(f) Accused Nos. 3 and 17 are sentenced to undergo imprisonment for one month and to pay fine of Rs. 20,000/- each for the offence under Section 326 of IPC. In default of payment of fine, accused shall undergo imprisonment for another one month."

The sentence already undergone by the accused shall be given set off. The sentence imposed on accused Nos. 3 and 12 shall run concurrently. The sentence as imposed by the trial Court is modified accordingly. The judgment and order of acquittal passed by the trial Court acquitting accused Nos. 4, 6, 7, 9 to 11, 13 to 16, 18 to 20 stands confirmed.

The amount of fine if recovered shall be paid to P.Ws. 3 and 9 to an extent of Rs. 20,000/- each as compensation. The remaining amount shall be distributed and paid as compensation to other injured witnesses namely P.Ws. 1, 2, 4 to 8, 10 and 20 in equal proportions.

Accordingly, Crl. A. No. 640/2011 stands dismissed and Crl. A. No. 421/2011 is allowed in part.

We place on record the valuable assistance rendered by Sri. Sampangiramaiah, learned Amicus Curiae. Hence, the registry is directed to pay Rs. 10,000/- as honorarium to learned Amicus Curiae.