Karnataka High Court
Sri Siddaraju @ Siddappa vs State By Jayapura Police on 2 March, 2022
Bench: Mohammad Nawaz
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF MARCH, 2022
BEFORE:
THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL No.602 OF 2011
BETWEEN:
1. SRI. SIDDARAJU @ SIDDAPPA,
S/O. CHIKKERASHETTY,
AGED ABOUT 33 YEARS,
2. SRI. ERANNA,
S/O. CHIKKERASHETTY,
AGED ABOUT 37 YEARS,
3. SRI. RAJU,
S/O. MAHADEVA,
AGED ABOUT 22 YEARS,
ALL ARE RESIDENTS OF
KOTEHUNDI VILLAGE,
JAYAPURA HOBLI,
MYSORE TALUK AND DISTRICT. ... APPELLANTS
[BY SRI. SRINIVASA D.C., ADVOCATE]
AND:
STATE BY JAYAPURA POLICE,
REPRESENTED BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BANGALORE. ... RESPONDENT
[BY SRI. KRISHNA KUMAR K.K., HCGP]
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 26.05.2011
PASSED BY THE VI ADDITIONAL SESSIONS JUDGE AND SPECIAL
2
JUDGE, UNDER SC & ST (POA) ACT, 1989, MYSORE, IN SPL.C.
NO.72/2009-CONVICTING THE APPELLANTS/ACCUSED FOR
OFFENCE PUNISHABLE UNDER SECTION 326 READ WITH 34 OF IPC
AND THE APPELLANTS/ACCUSED ARE DIRECTED TO UNDERGO S.I.
FOR TWO YEARS AND PAY FINE OF Rs.2,000/- EACH FOR OFFENCE
PUNISHABLE UNDER SECTION 326 OF IPC AND IN DEFAULT OF
PAYMENT OF FINE, THEY ARE DIRECTED TO UNDERGO S.I., FOR
TWO MONTHS.
THIS CRIMINAL APPEAL COMING ON FOR HEARING,
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred against the Judgment and
Order of conviction and sentence passed by the Trial Court
in Special Case No.72/2009, convicting and sentencing the
appellants/accused Nos.1, 3 and 4 for offence punishable
under Sections 326 r/w 34 of IPC.
2. Heard the learned counsel for the appellants
and the learned HCGP appearing for respondent/State and
perused the evidence and material on record.
3. Charges were framed against accused Nos.1 to
4 for offence punishable under Sections 326 r/w 34 of IPC
and under Sections 3(1)(ii) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989
[hereinafter referred to as 'SC and ST [POA] Act' for short]
4. Before the Trial Court, the prosecution in order
to bring home the guilt of the accused, got examined
P.Ws.1 to 11 and marked Exs.P1 to 8 and M.Os.1 and 2.
5. The learned Sessions Judge after appreciating
the oral and documentary evidence on record, acquitted
accused Nos.1 to 4 of the offence punishable under Section
3(1)(ii) of the SC and ST [POA] Act and acquitted accused
No.2 of offence punishable under Sections 326 r/w 34 of
IPC. However, accused Nos.1, 3 and 4 were convicted for
the offence punishable under Sections 326 r/w 34 of IPC.
6. It is the case of prosecution that on account of a
dispute with regard to drinking water, on 08.07.2009 at
6.30 p.m., when first informant's younger brother by name
Ravi [P.W.4] was sitting beneath the peepal tree in the
village, knowing fully well that he belong to Scheduled
Caste, all the accused came and assaulted him with a
chopper and a club on the right side of his waist, left leg,
elbow and other parts of the body and caused grievous
injuries to him etc.
7. The complaint is lodged by P.W.3. On the basis
of which initially a case was registered against 6 persons.
While filing charge-sheet, accused Nos.5 and 6, named in
the First Information Report were dropped.
8. The incident took place on 08.07.2009 at about
6.30 p.m. The complaint came to be lodged on 14.07.2009
at 2.35 p.m. In the complaint, P.W.3 has stated that when
he went to lodge the complaint, the villagers prevented him
stating that the matter should be solved in the village
itself. Since the dispute was not solved and his injured
brother was taking treatment in the hospital, he lodged the
complaint belatedly.
9. P.W.4 is the injured in this case. P.Ws.5, 6, 8
and 9 are the alleged eyewitnesses to the incident.
According to prosecution, the injured took treatment in the
hospital on 09.07.2009. The prosecution has got examined
P.W.1-Medical Officer of the K.R. Hospital, Mysuru, who
treated P.W.4 and issued Wound Certificate marked as
Ex.P1. As per Ex.P1, injured has sustained two injuries,
one below the abdomen measuring about 5 x 5 cms. and
another over the left thigh and left foot.
10. P.W.1 has stated that on 09.07.2001 at about
1.25 p.m., the injured was brought to the hospital by one
of his friend by name Krishnamurthy with a history of
assault by the accused persons with a chopper and a club.
He has stated that injury No.1 is simple in nature and
injury No.2 is grievous in nature. He has stated that the
said injuries could be caused by hand of a chopper and a
club. He has further stated that in respect of injury No.2,
X-ray was taken and as per the report, 5th metacarpal bone
was fractured. He has further stated that he sent the
M.L.C. intimation to the Police. In the cross-examination,
he has stated that except one Krishnamurthy, no one had
accompanied the injured.
11. It is the contention of the learned counsel for
the appellants that there is an inordinate delay of 6 days in
lodging the complaint and even though on 09.07.2009, the
injured took treatment in the hospital and the M.L.C.
intimation according to P.W.1 was sent to the Police, no
case was registered. He contends that a false case has
been foisted against the accused persons on account of the
ill-will between the parties. It is his further contention that
there are serious contradictions in the evidence of the
prosecution witnesses which go to the root of the
prosecution case. He further contends that even the
recovery of weapons are not at the instance of the accused
and there is inconsistency in the evidence given by P.Ws.8
and 9 with regard to recovery of weapons.
12. The learned HCGP has contended that there is no
discrepancy in the evidence of the prosecution witnesses
and in view of the evidence of the injured which is
corroborated by the medical evidence and other
eyewitness, the Trial Court is justified in convicting and
sentencing the accused.
13. The prosecution is relying on the evidence of
the injured P.W.4 as well as the evidence of P.Ws.3, 5, 6, 8
and 9, medical evidence and recovery of M.Os.1 and 2.
The injured is examined as P.W.4. He has deposed that on
the date of incident, he was sitting along with one Suresh
[P.W.5] beneath a peepal tree and at that time, four
accused came holding chopper and club. Accused No.1 was
holding a chopper and accused No.4 was holding a club.
They abused him and then accused No.1 assaulted him
with a chopper on his waist and accused No.4 assaulted
him with a club on his leg. Accused No.3 snatched the club
and assaulted him on his leg. Accused No.2 hit him with
the hand. He has further stated that P.Ws.3 to 5 pacified
the quarrel and took him to his house. The club was
snatched by C.W.7 [P.W.8] and she kept it in the house.
He has stated that on the next day, at about 1.00 p.m., he
went and got admitted in the hospital. He has further
stated that he was in the hospital as an in-patient for a
period of 4 days.
14. In his evidence, P.W.3, the first informant has
deposed that all the accused assaulted P.W.4 with a club
and a chopper. Accused No.3 was holding the club and
accused No.1 was holding the chopper and both of them
assaulted the injured with the said club and chopper. In so
far as the assault made by accused No.4 is concerned,
P.W.3 is silent.
15. Though it is the specific case of the prosecution
that P.W.5 is an eyewitness to the incident, he has not
stated that either accused No.4 has assaulted the injured
or accused No.3 snatching the club from the hands of
accused No.4. It is relevant to see that P.W.3 has deposed
in his evidence that he pacified the quarrel and took the
injured to the hospital. However, according to P.W.1-
Medical Officer, one Krishnamurthy brought the injured to
the hospital. The said Krishnamurthy has not been
examined by the prosecution.
16. P.W.6 is first informant's mother. P.W.8 is the
mother and P.W.9 is the sister of the injured/P.W.4. P.W.6
in her cross-examination has stated that when the incident
took place, she was in her house. From her evidence, it is
seen that she came to the spot after the incident was over.
She has stated that she has not given any statement to the
Police. In view of the said admission, it is difficult to
believe that P.W.6 is an eyewitness to the incident. Even
P.W.8 has admitted in her cross-examination that she has
not given any statement to the Police, though in her chief-
examination, she has stated that the Police have enquired
her and took her statement.
17. According to P.W.9, it was accused No.4 who
snatched the club from accused No.3 and assaulted on the
leg of the injured. She has stated that accused No.2 has
assaulted the injured with a club which is not stated by
other witnesses including the injured P.W.4, whereas he
has stated that the said accused hit him with the hand. In
her cross-examination, P.W.9 has stated that she is
deposing first time before the Court that accused No.3 was
holding a club. According to prosecution, the alleged
incident took place on 08.07.2009 at about 6.30 p.m. In
the complaint-Ex.P2, P.W.3 has stated that the villagers
prevented them from lodging the complaint stating that
they should solve the matter in the village itself and since
the matter was not solved, he lodged the complaint. He
has further stated that the injured was taking treatment in
the hospital.
18. The complaint is lodged on 14.07.2009. The
prosecution has not examined any of the villagers who is
said to have prevented P.W.3 from lodging the complaint
immediately and advised him that the matter should be
resolved in the village itself. It is pertinent to see that
according to P.W.3, at the time of lodging the complaint,
the injured was taking treatment in the hospital. The
complaint is lodged after 6 days. However, P.W.4, the
injured himself has stated that he was in the hospital for
only 4 days. P.Ws.8 and 9 have stated that the injured
was in the hospital for 3 days. Even P.W.1-doctor who
treated P.W.4 on 09.07.2009 has not at all stated that the
injured was in the hospital for 7 days. Hence, the
explanation offered for the delay in lodging the complaint
that the villagers prevented from lodging the complaint
immediately and that the injured was in the hospital at the
time of lodging the complaint cannot be accepted.
19. In his evidence, P.W.3 has stated that he took
the injured to the hospital. As per P.W.1, the injured was
brought to the hospital by one Krishnamurthy, who is not
examined. The injured has not stated that he was taken to
the hospital either by P.W.3 or Krishnamurthy.
20. In so far as recovery of M.Os.1 and 2 are
concerned, admittedly, the said material objects are not
recovered at the instance of the accused persons. It is the
specific case of the prosecution that the witnesses viz.,
P.Ws.6 to 8 snatched those weapons from the hands of the
accused and kept it in their house. When there is
inconsistency and contradictions in the evidence of P.Ws.6
and 8, their evidence with regard to snatching the weapons
from the hands of the accused does not inspire confidence
of the Court. P.W.7, panchwitness to Ex.P7 has stated that
he does not know what is written in Ex.P7. Be that as it
may, the weapons are not seized at the instance of the
accused persons and therefore, no much reliance can be
attached to the recovery mahazar at Ex.P7.
21. The Wound Certificate of the injured-P.W.4 is
marked as Ex.P1. The doctor-P.W.1 has stated that injury
No.1 is simple in nature and injury No.2 is grievous in
nature. According to PW.1, as per X-Ray Report, the 5th
metacarpal bone was fractured. The prosecution has not
produced and marked any X-ray report to establish that in
fact such X-ray of the injured was taken or the injured
suffered fracture of 5th metacarpal bone. Hence, it cannot
be held that the prosecution has been able to establish
beyond reasonable doubt that the injured sustained
grievous injury.
22. From the evidence of the prosecution witnesses
it can be clearly gathered that all was not well between the
accused persons on one side and the injured and his family
members on the other side. Earlier to the incident in
question, both the parties have filed complaint against each
other. The incident is alleged to have taken place on
account of drinking water pipe, fixed near the house of
P.W.4-injured.
23. The FIR is lodged against six accused.
However, while filing charge-sheet, accused Nos.5 and 6
have been dropped. Though it is alleged in Ex.P2 that all
the six accused have assaulted P.W.4 with a chopper and a
club, in the evidence none of the witnesses have attributed
any overt-act against accused Nos.5 and 6. According to
P.W.1, on the date of admission of the injured i.e., on
09.07.2009, M.L.C. intimation was sent to the Police.
However, the Investigating Officer has not stated that he
received any intimation from the hospital and till
14.07.2009 no case was registered. In view of the above,
the conclusion arrived at by the Trial Court for convicting
the accused holding that the evidence of the injured and
eyewitnesses is supported by the medical evidence and the
prosecution has established that the accused/appellants in
furtherance of their common intention assaulted P.W.4 and
caused grievous injury is not proper.
24. For the foregoing reasons, the appeal deserves
to be allowed. Accordingly, the following:
ORDER
Appeal is allowed.
The Judgment and Order dated 26.05.2011 passed in
Special Case No.72/2009 on the file of the Court of the
VI Addl. District and Sessions Judge and Special Judge
under SC and ST [POA] Act, 1989 at Mysuru, is hereby set
aside. The appellants/accused Nos.1, 3 and 4 are
acquitted of the offence under Sections 326 r/w 34 of IPC.
Their bail bonds stand cancelled.
Sd/-
JUDGE
Ksm*
