Sri K P Boregowda @ Shashi Vs State of Karnataka

THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE CONVICTION AND SENTENCE ORDER DATED 13.07.2012 PASSED BY THE ADDL. SESSIONS JUDGE, HASSAN IN SPL. CASE NO.28/2011 AND ETC.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This appeal is filed by accused Nos.1 to 3 challenging the judgment of conviction and sentence dated 13.07.2012 passed in Spl. Case No.28/2011 by the Additional Sessions Judge, Hassan.

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Heard the learned counsel appearing for the respective parties.

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The factual matrix of the case of the

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prosecution before the Trial Court is that on 10.02.2011 in between 4.45 and 5.00 p.m., when the complainant was removing weeds in his land, the accused persons were also working in their garden. At that time, the complainant called accused No.2 and informed to remove the illegal electricity connection obtained through the pole situated in the land belonging to the complainant. Enraged by this, accused persons abused the complainant in a filthy language taking his caste name and accused No.2 kicked him with legs, accused No.1 fisted and trampled him. Due to fear, the complainant came to his house. After 5 to 10 minutes, accused Nos.1 and 2 came near his house and started abusing the complainant and at that time, one Vasanth Kumar who is the member of the Gram Panchayat came to pacify the quarrel, but the accused persons assaulted the said Vasanth Kumar with hands and torn his shirt and abused him touching his caste and after 10 minutes of the said incident, accused persons came near the house of the complainant by holding with clubs and

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accused No.3 abused CW1 and CW3 touching their caste and accused No.1 and 2 on the instigation of accused No.3 assaulted CW1 with club and caused simple injuries and also threatened CW1 and CW3 with dire consequences of life. Hence, the complainant lodged the complaint.

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Based on the complaint, the police have registered the case, investigated the matter and filed the charge-sheet against the accused persons for the offences punishable under Sections 504, 323, 506, 324, 114 read with Section 34 of IPC and Section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

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The prosecution in order to prove the case, examined 18 witnesses as PW1 to PW18 and got marked the documents at Ex.P1 to P19 and also marked MO1 to MO4. The accused persons subjected to 313 statement and they have not let any defence evidence in support of their case. The Trial Court considering both oral and documentary evidence placed on record convicted accused Nos.1 and 2 for the offences punishable under Sections 504, 323, 324, 506 read with Section 34 of IPC and

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sentenced to undergo simple imprisonment for a period of one month for the offences punishable under Sections 504 and 323 each and simple imprisonment for six months for the offences punishable under Sections 324 and 506 each with fine of Rs.1,000/- each offences and accused Nos.1 and 2 convicted for the offence punishable under Section 3(1)(x) of SC and ST (POA) Act and sentenced to undergo simple imprisonment for one year and fine of Rs.5,000/each. Being aggrieved by the said judgment of conviction and sentence, the present appeal is filed by the accused persons before this Court.

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The learned counsel for the appellants would vehemently contend that the very evidence of prosecution is contrary to the material on record. The counsel would vehemently contend that PW17 went to the hospital and recorded the statement of the complainant but PW1 in his chief evidence says that he went to the police station on the very next day and lodged the complaint and case has been registered. Hence, there are foundational defect in the case of the prosecution. The very initiation of criminal

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case, set the law into motion and contra evidence of PW1 and PW17 have not been appreciated by the Trial Court in a proper perspective. The counsel also brought to notice of this Court the wound certificate which is marked as Ex.P12 wherein it is categorically mentioned that only one accused i.e., Shahi S/o Puttaswamy Gowda assaulted him with hand and feet on 10.02.2011 at 5.00 p.m. and no history of further incident and assault made by accused Nos.2 and 3 and hence, it is a clear case of concoction. The counsel further submits that the wound certificate discloses that diffuse pain and tenderness over the left cheek and mandibular area and diffuse pain and tenderness over the chest and abdomen. Such being the case, it discloses that it is a clear case of improvement in the case of prosecution that accused No.2 assaulted with the club and also the case of the prosecution that accused persons even assaulted PW3 also but no document of wound certificate of PW3 is placed before the Court to substantiate the same when the allegation was made that he was also assaulted with club. There are improvement in the case of

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prosecution and only with an intention to harass the accused persons, a false case has been registered against them. Even P.W.1 identifies the signature in the complaint which he was given in terms of Ex.P.1 at the Police Station.

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The P.W.2 also in the cross-examination admits

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that accused Nos.1 and 2 with the club assaulted P.W.3 and Police have recorded the statement and further says that P.W.3 was assaulted 4-5 times as a result blood was also oozing from the body and cloth were also stained with blood. It is also their case that accused Nos.1 and 2 again

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they went and brought accused No.3. The material contradictions are not considered by the Trial Court. The counsel also brought to notice of this Court C.W.3 speaks as he is also eye witness, but in the cross-examination he says that when he went to spot accused Nos.1 and 2 was assaulting P.W.1 with club and again says that when he went to spot, already assaulted and also he says that he had sustained injury on his back and P.W.1 shirt was also blood stained. While giving the statement before the Police

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also he made the statement accused Nos.1 and 2 assaulted P.W.1 with club and also claims that when he went to spot, there were 10-15 persons and P.W.4 also speaks about abusing the P.W.1 by accused Nos.1 and 2 taking their caste name. This witness also cross-examined and in the cross-examination he says that they chased the P.W.1 and he had witnessed the same from 50 feet and accused Nos.1 and 2 were having clubs on their hands, but he did not witness the accused Nos.1 and 2 assaulted P.W.1 and the very evidence of P.W.4 contrary to the evidence of other prosecution witnesses, but P.W.4 says that P.W. 3 was also assaulted by accused Nos.1 and 2 with club 4-5 blows were given, but P.W.3 had not sustained any injury.

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The other some of the witnesses have turned

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hostile. The Doctor –P.W. 10 who has been examined before the Court also says that he found only pain in the mandibular in the left cheek and it is only an internal injury and so also on the chest and no external injury.

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The counsel also would vehemently contend that medical evidence also not corroborates with the allegation of the prosecution witnesses and those injuries are not corresponds with wound certificate as well as medical evidence also not corresponds with allegation made in the charge sheet.

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Per Contra, the counsel appearing for the respondents would contend that incident was taken place twice, in the first instance, an assault was made with hand and later on assault was made with club and also abused by taking the caste name and C.W.1 had sustained simple injuries and also threatened C.W.1 and C.W. 3 with dire consequences and thus Trial Court having considered material available on record, particularly the evidence of injured witness P.W.1 as well as other witnesses, rightly appreciated and convicted and it does not requires any interference.

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Having heard the appellant’s counsel and also

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counsel appearing for the respondent –State, the point that would arise for consideration of this Court are:

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1) Whether the prosecution proved that accused Nos.1 and 2 picked up quarrel with C.W.1 and accused Nos.1 and 2 voluntarily caused hurt to complainant to his chest by using club as a weapon and thereby committed an offence punishable under Section 324 r/w Section 34 of IPC and whether this Court can exercise the appellate jurisdiction?

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2) What Order?

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Having considered the material on record and

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also charges framed against accused Nos.1 and 2 that they voluntarily caused hurt to the complainant on chest by using club as weapon and thereby committed an offence. In order to prove the case of prosecution, mainly relies upon the Ex.P.1 and the same discloses that a quarrel was taken place in connection with taking of the electrical connection illegally from the borewell of the complainant and when he questioned the accused No.3, he uttered and abused by using his caste name and kicked him and immediately he went to the house and again at 5:30 p.m., the accused persons came near the house and

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abused in a filthy language as well as assaulted with the club on the chest by accused No.2 and when the same was noticed by P.W.3, questioned the same and pacified the incident and he was also assaulted.

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Having considered this complaint averment as

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well as charges levelled against the accused and also considering the evidences of material witnesses P.W.1 and P.W.2 and P.W.1 is an injured witness according to the prosecution and he re-iterates the contents of the complaint averment and he re-iterates the same in his evidence also but in the chief evidence itself he says that he went and lodge the very complaint on the very next day in the Police Station and he also put the treatment in the hospital and he identifies the signature in the Ex.P1, but in the cross-examination he categorically admits that at the time of incident, there were 10-15 persons and Narasimmaiah, Shivamma pacified the galata. Even he admits that MO.1 to MO.4 who gave to the Police is also not aware of the same since he was in the hospital.

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The other witness is P.W.2 claims as eye

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witness with regard to the accused as well as assault and thrown the shirt and baniyan and this incident was pacified by Manjunatha, Narasimmaiah and Shivamma. This witness was subjected to cross-examination and in the cross-examination says accused Nos.1 and 2 assaulted the P.W.3 with club and accused Nos.1 and 2 were holding clubs and Police have also recorded the statement even gone to the extent of saying that P.W.3 was assaulted with club 4-5 times as a result, his clothes were also stained with blood. On perusal of material available on record, no wound certificate of P.W.3 is placed before the Court to show that he was also assaulted with club and only document MO-3 and MO-4 were seized. Having considered the wound certificate which is marked before the Court, the P.W.1 says that he was assaulted with hands that too by accused No.3 and not stated anything about the assault made by the accused Nos.1 and 2 and though says that accused Nos.1 and 2 were having clubs and assaulted with club, the very wound certificate issued by the Doctor

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clearly discloses that only allegation of assault was made with hand and feet and not with any club and even the Doctor who has been examined as P.W.12 also re-iterates the nature of injury sustained by the P.W.1 in her evidence and only internal injuries and no external injuries. The prosecution relies upon the evidence of eye witnesses that assaulted with club and there are no external injuries. The P.W. 12 Doctor says that such injuries would be caused only if used the hands and kicked.

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Having considered the material on record, particularly the evidence of P.W.1 to P.W.3 and also P.W.4, though says witnessed the incident and P.W.3 also says witnessed the incident and P.W.3 in the crossexamination admits that accused Nos.1 and 2 were assaulting P.W.1 with club but other witness says that accused Nos.1 and 2 assaulted P.W.3 and P.W.3 claims that P.W.1 sustained injury on his back but in terms of wound certificate, no such injuries found on the back of the P.W.1. In the cross-examination of P.W.4 also he says that accused Nos.1 and 2 were having clubs and he did

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not witness the assault made against the accused No.1 and only says that accused Nos.1 and 2 assaulted P.W.3 that too 4-5 times but not sustained any grievous injury, but assault was made with the club and having considered this evidence of P.W.3 and P.W.4 also it’s an improvement with regard to the case of prosecution and having considered the evidence of P.W.1 to P.W.4 as well as Doctor evidence P.W.12 and only history given before the P.W.10 is that assault was made by accused No.3 with hand, but witnesses speaks about accused No.1 and 2 assaulted with club. In order to substantiate the same, nothing is placed on record including the wound certificate and though claim was made that P.W.3 was also assaulted with club, no wound certificate is placed on record. Apart from that there are no any injuries of assault made with club and naturally if any club was used, external injuries would be caused and no any external injuries and having taken note of this contradictions, omissions and also the commissions, the Trial Court has not considered all these aspects while appreciating the material on record and it

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appears that there was an ill-will between P.W.3 and also the accused persons since P.W.3 was in member of panchayat and P.W.3 particularly evidence is contrary to evidence of P.W.1 and P.W.2 and contradictions found in the evidence of each witnesses that is P.W.1 to P.W.4 and not taken note of by the Trial Court and P.W.3 says that accused Nos.1 and 2 are assaulting P.W.1 with club and again says that when he went to spot already assault was made and his evidence is also not consistent. The evidence of P.W.3 also not corroborates since he says that there was an injury on the back of the P.W.1 and no such injury was noted in the wound certificate and when such material contradictions are found and evidence also not inspires the confidence of the Court, the Trial Court ought not to have convicted the accused for the offence punishable under Section 324 of IPC, when there was no any consistent evidence and also contra evidence found in the prosecution witnesses and hence, the Trial Court committed an error in considering the material on record in a proper prospective. Hence, I answer the point as

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‘Affirmative’ in coming to the conclusion that this Court can exercise the appellate jurisdiction since the Trial Court

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not considered both oral and documentary evidence available on record and the evidence not corroborates with each other. Hence, it requires interference of this Court.

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In view of the discussions made above, I pass the following:

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ORDER

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i) The Criminal Appeal is allowed.

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ii) The impugned judgment of conviction and sentence passed in Spl.C.No.28/2011 dated 13.07.2012 on the file of Addl. Sessions Judge at Hassan is set-aside.

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iii) If any fine amount is deposited by the appellant, ordered to be released in favour of the appellant on proper identification.

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Sd/- (H.P.SANDESH) JUDGE

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SN/RHS

Sri K P Boregowda @ Shashi v. State of Karnataka

Case brief

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Sri K P Boregowda @ Shashi v. State of Karnataka

Case brief

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