Swamy @ Gangolli Swamy @ Somashekara and Others vs The State of Karnataka

A.S. Pachhapure, J.—The appellants have challenged their conviction and sentence for the offence punishable under Sections 143, 144, 147, 148, 341, 307 r/w. 149 IPC on a trial held by the Fast Track Court, Shimoga. The fact:; relevant for the purpose of this appeal are as under:

P.W. 1-Honnanaika is the father of P.W. 2-Nagaraja, P.W. 3-Parameshwara and P.W. 10-Suresha and they are the cousins of the accused. There was a dispute between the injured-P.Ws. 1 to 3 and the accused relating to supply of water to the land. On 09.02.2004, P.Ws. 1 to 3 had been to a neighbouring village to purchase household articles and while they were returning, at some distance from their house, the appellants/accused having formed in an unlawful assembly armed with axe, knife, club, etc., intercepted P.Ws. 1 to 3 and abused them in vulgar language, said to have assaulted them by the said weapons. As a result, P.W. 1 sustained severe injuries and fell to the ground in a semi-conscious condition. After the assault, the accused said to have left the place by throwing the weapons at the place of the incident. Injured-P.W. 1-Honnanaika was shifted to Ripponpet Government Hospital and while he was undergoing treatment, P.W. 2-Nagaraja filed a complaint-Ex. P1. In the course of the investigation, P.Ws. 1 and 3, who had also sustained injuries in the said incident were also taken to the hospital.

During the course of the investigation, spot-mahazar was held and M.Os. 1 to 5 weapons were seized under Ex. P9-seizure mahazar from the scene of occurrence. Statements of the witnesses were recorded. The clothes of the injured were seized under mahazar-Ex. P2 and the seized articles were sent to the opinion of the experts. On completion of the investigation, charge-sheet came to be laid against the accused for the aforesaid offences.

During the course of the, trial, P.Ws. 1 to 14 were examined and documents Exs. P1 to 20 and M.Os. 1 to 7 were got marked. Statements of the accused were recorded u/s 313 Cr.P.C. The accused led no defence evidence, but Exs. D1 to 7 have been marked in the course of the trial.

The Court below after hearing learned counsel for'' the parties and on appreciation of the material on record, convicted the accused for the aforesaid offences and mainly for the offence punishable u/s 307 r/w. 149 IPC and have been ordered to undergo rigorous imprisonment for 5 years and to pay fine of Rs. 5,000-00 each with default sentence and lesser sentence was awarded in respect of the other offences. Aggrieved by the conviction and sentence, the present appeal is filed.

During the pendency of the trial, accused Nos. 1 and 6 have died and the appeal against the said accused is abated.

I have heard learned counsel for the appellants and the learned High Court Government Pleader.

The point that arises for my consideration is;

Whether the appellants have made out any grounds to warrant interference in their conviction and sentence ordered by the trial Court?

It is the submission of the learned counsel for the appellants that the origin and genesis of the case of the prosecution has been suppressed. The injury on the accused have not been explained and the prosecution''s version put-forth on the injured witnesses cannot be believed. Therefore, he submits that the appellants are entitled to the benefit of doubt. He contends that the trial Court did not consider this aspect and therefore, submits that the Judgment and Order impugned are erroneous and illegal.

On the other hand, learned High Court Government Pleader supporting the Judgment and Order of the trial Court submits that P.Ws. 1 to 3 are the injured and they have narrated the part played by the accused and there is nothing to disbelieve the version of the injured witnesses, which has been corroborated by the evidence of the other witnesses and medical evidence.

P.W. 1-Honnanaika is an injured and he is the father of P.Ws. 2 and 3. As per his version, he along with his sons had been to neighbouring village to purchase household articles and while returning back, at some distance from their house, the accused came together and assaulted them with axe, knife and club. As a result, he suffered injuries and Ex. P3 is the injury certificate. The perusal of the injury certificate reveals the history of assault is on 09.02.2004 at 6.30 p.m. and P.W. 1 came to the hospital along with his wife. He had suffered: (1) fracture of 1/3rd ulna and radius, (2) fracture of upper 1/3rd left tibia and fibula, (3) fracture of 1/3rd left tibia and fibula and (4) comminuted fracture of upper 1/3rd right fibula All these injuries suffered are grievous in nature. P.W. 2-Nagaraj has suffered 2 injuries and the injury certificate is produced at Ex. P8. He had suffered (1) a cut wound on scalp measuring 5 cm. x 1/4 cm. x 1/2 cm. and (2) a cut wound measuring 2 cm. x 1/4 cm. x 1/2 cm. P.W. 2 was examined at 2.00 a.m. whereas P.W. 1-Honnanaika was examined at 1.15 a.m. P.W. 3 was examined at 8.20 a.m. The perusal of Ex. P4-Medico Legal Register, produced by the prosecution, would reveal that P.W. 1-Honnanaika was admitted to the hospital and the doctor on his examination by 1.30 a.m., history has been given as assault by Eshwara-accused No. 3 and Bojappa-accused No. 2 and no other names have been mentioned in the said Register. But, the perusal of Ex. P7 would reveals that in respect of the history of assault on P.W. 3-Parameshwara refers to the name of 11 persons as the assailants. The perusal of their evidence would reveal an assault by the accused persons with the clubs, knifes and axe.

P.W. 5-Dr. Ganesh Bhat, who examined P.W. 1-Honnanaika, in the cross-examination has referred to the examination of accused Nos. 2 and 3 on 10.02.2004 at 1.15 a.m. i.e., within few hours of the incident. On examination of accused No. 2-Bojappa, who has been brought to the hospital with the history of assault at 6.30 p.m. on 09.02.2004 by Honnanaika and his family members with sharp edged weapons and he found: (1) a stab incised wound over mid-axillary line 6th and 7th inter-coastal space, lungs tissues coming out of wound and (2) tenderness present in the left shoulder and fore arm. The relevant entry in the register has been marked as Ex. D2. The aforesaid injuries are simple in nature. He also examined Eshwara-accused No. 3 with same history and accused No. 3 had sustained: (1) cut incised wound about 5x2 cm. present over right shoulder, muscles exposed, (2) multiple-cut incised wounds over left wrist and fore-arm and (3) cut incised wound over the base of left little finger. So far as the injuries of these 3 persons are concerned, none of the witnesses examined including the injured or other eye-witnesses stated as to the way and manner in which accused Nos. 2 and 3 sustained injuries in the incident. None of the witnesses including the injured were holding any weapons at the time of the incident as stated by them before the Court. If really, any of these injured persons were not holding the weapons, as to how the injuries were sustained by accused Nos. 2 and 3 have also not been explained. It is pertinent to note that accused No. 3 had sustained grievous injury and both the injured had suffered injuries with sharp edged weapons and may be due to the knife as stated by them. As to who held the knife at the time of the incident and who caused the injuries to them is suppressed by the prosecution. So, when the origin and genesis of the case of the prosecution is suppressed, a doubt arises with regard to the case put-forth by the prosecution about the assault by the accused on the injured.

That apart, on the date of the incident, as stated by P.Ws. 1 to 3, they have been went to neighbouring village to purchase household articles and according to them, P.W. 1 was holding the bag containing the household articles. Though he fell unconscious at the place of the incident, nothing is recovered from the place. Furthermore, if a person is to brings household articles for a family, particularly, P.Ws. 1 to 3 who belongs to a poor family, I do not think that there is necessity 3 persons to go to the neighbouring village to purchase household articles. Their version that they having gone to the neighbouring village to purchase household articles appears to be a concoction. There was a duty cast upon the prosecution to explain these doubts that arise in the mind of the Court, particularly, the injuries sustained by accused Nos. 2 and 3. The non-mention of the names of the other accused except accused Nos. 2 and 3 in the Medico Legal Register at Ex. P4, if really as many as 8 persons or 4 persons, P.W. 5-doctor would have mentioned the names of all or at least the names of the aforesaid 2 persons and others.

From the material placed on record and the circumstances brought on record, a serious doubt arises about the genesis of the case of the prosecution. This doubt has to go to the benefit of the accused. The trial Court has not taken into consideration this aspect. It has just believed the evidence of the injured though there is no explanation of the injuries by accused Nos. 2 and 3. The approach of the trial Court is erroneous.

In the result, the appeal is allowed. The Judgment and Order impugned is set aside. The appellants are acquitted of the charges under Sections 143, 144, 147, 148, 341, 307 r/w. 149 IPC. Fine if any deposited, shall be refunded.