Tirupati S/O Kamanna Chigrihal ... vs The State Through
2023 Latest Caselaw 106 Kant

                                      CRL.A.No.3548/2013


                         1



           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

      DATED THIS THE 3RD DAY OF JANUARY 2023

                      PRESENT

     THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
                        AND
      THE HON'BLE MR.JUSTICE ANIL B KATTI

         CRIMINAL APPEAL NO.3548/2013

BETWEEN:

1.   TIRUPATI
     S/O KAMANNA CHIGRIHAL
     AGE: 25 YEARS
     OCC.: AGRICULTURE

2.   HALEPPA
     S/O CHANDAPPA BADIGER
     AGE:40 YEARS
     OCC: AGRICULTURE

3.   SIDDAPPA
     S/O CHALLAGEPPA CHIGRIHAL
     AGE: 50 YEARS
     OCC: AGRICULTURE

4.   RAGHAPPA @ RAGHAVENDRA
     S/O CHANDAPPA CHIGRIHAL
     AGE: 22 YEARS
     OCC: AGRICULTURE

5.   MONESH
     S/O KAMANNA CHIGRIHAL
     AGE: 20 YEARS
     OCC: AGRICULTURE
                                           CRL.A.No.3548/2013


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6.     SAHEBGOUDA
       S/O CHANDAPPAGOUDA BIRADAR

7.     SHIVAPPA
       S/O CHANDAPPA CHIGRIHAL
       AGE: 25 YEARS
       OCC: AGRICULTURE

8.     BASWARAJ
       S/O SHARANAPPA BIRADAR
       AGE: 40 YEARS
       OCC: AGRICULTURE

       ALL ARE R/O SHAKAPUR VILLAGE
       TQ: SHORAPUR, DIST: YADGIR      ...APPELLANTS

(BY SRI NANDKISHORE BOOB, ADVOCATE)

AND:

THE STATE THROUGH C.P.I.
HUNASAGI POLICE STATION                RESPONDENT

(BY SRI.PRAKASH YELI, ADDL. SPP)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER OF CONVICTION DATED 16.02.2013 PASSED IN
SESSIONS CASE NO.26/2010 ON THE FILE OF THE SESSIONS
JUDGE AT YADGIRI, CONVICTING THE ACCUSED/APPELLANTS
FOR THE OFFENCE P/U/S. 143, 147, 148, 324, 326, 302, 504
R/W 149 OF IPC.

     THIS CRIMINAL APPEAL PERTAINING TO KALABURAGI
BENCH HAVING BEEN HEARD AND RESERVED ON 19.10.2022
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
K.S.MUDAGAL J., SITTING AT PRINCIPAL BENCH THROUGH
VIDEO CONFERENCING DELIVERED THE FOLLOWING:
                                                  CRL.A.No.3548/2013


                              3




                         JUDGMENT

Aggrieved by the order of conviction and sentence

passed against them for the offences punishable under

Sections 143, 147, 148, 302, 324 read with section 149

IPC, accused Nos.2 to 9 in S.C.No.26/2010 on the file of

the District and Sessions Judge, Yadgir have preferred the

above appeal.

2. The appellants and accused No.1 were tried in

S.C.No.26/2010 for the aforesaid offences on the basis of

the charge sheet filed by Kembhavi Police in Crime

No.44/2009 of their Police Station. Crime No.44/2009 was

registered by Kembhavi police on the basis of complaint of

PW.1 as per Ex.P1. During pendency of S.C.No.26/2010

accused No.1 died. Therefore the case against him

abated.

3. The case of the prosecution in brief is as

follows:

(i) PW.1 is the cousin brother of deceased

Devappa. That accused No.1 was running a Fair-Price shop CRL.A.No.3548/2013

in the village Shakapura under the Public Distribution

Scheme. Instead of distributing the said groceries to

beneficiaries, he was selling them to the traders in market.

The villagers complained to deceased Devappa about such

acts of accused No.1. Devappa admonished accused No.1

for such of his acts. Being enraged by that accused No.1

and other accused were nursing ill-will against Devappa.

(ii) In that background on 24.04.2009 at 8.30

a.m. at their village entrance, the accused being members

of unlawful assembly with common object of committing

murder of Devappa armed with clubs and stones accosted

him. Accused No.1 abused Devappa in foul language for

advising him regarding Fair-Price distribution and all of

them started assaulting him with sticks and stones. When

PW.1 came to his rescue, accused No.1 assaulted PW.1

with stick on his head. Accused No.2 assaulted him with

stick on the left side of his head. Accused No.8 assaulted

him on his head with a stick causing simple injuries to him.

Further accused Nos.3, 5 to 7 and accused No.9 assaulted

Devappa with sticks on his head, legs and chest and CRL.A.No.3548/2013

accused No.4 felled him to the ground and tried to throttle

him. Consequently, Devappa suffered grievous injuries.

(iii) PW.5 Siddanagouda shifted injured PW.1 and

Devappa to Kembhavi Hospital in his Auto-rickshaw. In the

said hospital after giving preliminary treatment, PW.8/

Doctor on finding that the condition of Devappa is serious

referred him to Gulbarga Hospital for higher treatment.

From there, Devappa was referred to Ashwini Hospital,

Solapur. On taking treatment PW.1 went to Kembhavi

Police Station and filed the complaint as per Ex.P1. When

Devappa was taking treatment in Ashwini Hospital, Solapur

on 27.04.2009 he succumbed to injuries. Therefore, the

offence under Section 302 was included in the case. After

completion of the investigation, Kembhavi police filed the

charge sheet as aforesaid.

4. The learned Sessions Judge relying on the

evidence of PW.1 the injured eyewitness, PWs.2 to 4 the

eyewitnesses, the evidence of PW-5, the medical evidence

and the evidence of the official witnesses by the impugned CRL.A.No.3548/2013

judgment, convicted the accused for the various offences

and sentenced them as per the chart below.

Convicted for Fine Sl. Accused the offences Sentence of Default amount No. Nos. punishable imprisonment sentence in Rupees under Section 1 A2 to A9 143 of IPC S.I of one month 2 A4, A8 & 147 of IPC S.I of two - -

      A9                               months
                                           -
3     A2,    A3,   148 of IPC        S.I of three         -             -
      A5 to A7                         months
3     A2 to A9     324 read with      S.I of two          -             -
                   Section 149 of       years
                   IPC
4     A2 to A9     302 read with         Life         10,000/-      S.I of two
                   Section 149 of   Imprisonment        each          years
                   IPC

5. Sri Nanda Kishore Boob, learned Counsel for

the appellants seeks to assail the impugned order of the

conviction and sentence on the following grounds:

(i) There are material contradictions and

inconsistencies in the evidence of the prosecution with

regard to involvement of the appellants.

(ii) PW.1 in the complaint named only 5 accused.

In his further statement, he implicated in all 13 accused.

However, the Police filed charge sheet against 9 out 13 CRL.A.No.3548/2013

accused. That itself shows that there was an attempt on

the part of the prosecution witnesses to rope many others

in the case.

(iii) According to the evidence of PW.13 and

Ex.P19, the victim Devappa was brought to the Hospital at

Solapur with the history of fall. Therefore, the evidence of

prosecution with regard to the death being homicidal was

inconsistent.

(iv) There was unexplained delay in registering the

FIR and delivering the same to the Court.

(v) The alleged eyewitnesses were all the relatives

of the deceased. Therefore they are interested witnesses.

Though the scene of offence was a populated area, no

independent witnesses were examined to prove the

incident.

(vi) The evidence on record does not show that

there was any premeditation or common object amongst

the accused to commit the offence.

CRL.A.No.3548/2013

(vii) The trial Court failed to appreciate the

evidence in a sound manner and apply the relevant law.

6. Per contra the learned ASPP justifies the

impugned order of conviction and sentence on the ground

that PW.1 being the injured eyewitness, carries the higher

credence. The other eyewitnesses being the residents of

the same village and PW.5 being the person who shifted

the injured to the hospital, their presence at the scene of

offence and occurrence of crime is acceptable. At the

earliest point of time, the history of injuries being

homicidal was given. There was no suggestion to PW.5

that he had given the history of fall at Solapur Hospital.

Therefore the trial Court was justified in preferring the

evidence of PWs.1 to 5 to the evidence of PWs.10 and 13

and Ex.P19. The submission with regard to delay in filing

the complaint, implication of accused Nos.6 to 13 by

subsequent statement were all rightly analysed by the trial

Court. There are no grounds to interfere with the

impugned judgment and order passed by the trial Court.

CRL.A.No.3548/2013

7. On considering the rival submissions and the

material on record the question that arises for

consideration is:

"Whether the impugned judgment and order of conviction and sentence is sustainable in law?"

Reg. Proof of injuries:

8. The first question is whether the injuries

suffered by PW.1 and victim Devappa and the death of

Devappa due to such injuries is proved. To prove the said

fact, the prosecution relied on the evidence of PW.1 to

PW.5, PW.8 the doctor who treated PW.1 and deceased at

Kembhavi hospital, PW.10 who conducted the Post-mortem

of the dead body of Devappa and PW.13 the doctor who

attended Devappa in Ashwini Hospital, Solapur along with

one Dr.S. Prabhakar and Ex.P5, P6, P12 and P19.

9. According to PWs.1 to 5 and PW.8, after PW.1

and Devappa suffering injuries, their brother PW.5 shifted

them in his auto-rickshaw to the Government hospital CRL.A.No.3548/2013

Kembhavi. There PW.8 the Medical Officer of Kembhavi

Primary Health Centre examined them and issued the

wound certificates Exs.P5 and P6. According to the

evidence of the said witnesses since the condition of

Devappa was deteriorating, PW.8 referred him to higher

medical centre. Accordingly, PW.5 took him to hospital at

Kalaburagi and from there to Solapur.

10. In the cross examination of PW.8, PW.10 - the

doctor who conducted autopsy and PW.13, the injuries

suffered by PW.1 and Devappa were not disputed. The

aforesaid evidence shows that PW.1 had suffered the

following injuries:

(i) C.L.W.over the middle of scalp, measuring 6 X 2 cms.

(ii) C.L.W. over the post. aspect scalp, measuring 4 X 1.5 cms

(iii) C.L.W. over the left side of scalp, measuring 4 X 1.5 cms.

                                                      CRL.A.No.3548/2013






      11.    The        evidence         of          PW.8         and

Ex.P5 show that PW.8 found the following injuries on

Devappa.

(i) Tenderness Fracture over the Head, middle of scalp

(ii) Tenderness fracture over the front of chest.

The evidence of PWs.10, 13 and Ex.P12 post-mortem

report and Ex.P19 the case sheet of Devappa speak about

the injuries suffered by Devappa. In the evidence of PW.10

the injuries found on the dead body were not disputed.

According to PW.10 and the post-mortem report Ex.P12 the

following injuries were found on the dead body.

i) Abrasion of (2 cm X 2cm) over left lower leg

ii) Abrasion of (4cm x 0.5 cm.) over left arm.

iii) Haematoma about (4cm X 2cm X1cm) over the skull under scalp on left parietal region

iv) Linear fracture line horizontally over the parietal bone about 15 cm long.

v) Brain matter - congested oedematous extradural haematoma about 50 gms of Left Parietal region of skull - Diffuse subdural haematoma over Right Frontoparietal region, multiple hemorrhagic contusion over frontal region.

CRL.A.No.3548/2013

12. The opinion of PW10 regarding the cause of

Death was 'Head Injury'. Thus it becomes clear that PW.1

and Devappa had suffered the above referred injuries and

death of Devappa was due to the head injuries mentioned

above.

Reg. Nature of injuries and death:

13. According to the prosecution, the injuries

found of PW.1 and Devappa were homicidal one. PWs.1 to

5 in unison deposed that accused Nos.1 to 9 were authors

of those injuries. So far as Devappa it was contended that

those injuries were due to a fall. But so far as the injuries

of PW.1 except the denial of assault by them, the accused

did not make out any defence regarding cause of those

injuries.

14. Overt acts in the complaint Ex.P1 are as

follows:

i) Accused Nos.1 and 2 assaulted PW.1 with club

on his head and left side of his head;

CRL.A.No.3548/2013

ii) Accused No.3 assaulted Devappa on his head

with club;

iii) Accused No.5 assaulted on the knee of

Devappa with the stone ;

iv) Accused No.4 felled him to the ground and

attempted to throttle him.

15. Later PW.1 said to have given a statement as

per Ex.P2 implicating 13 accused. Though Ex.P2 was

admitted in the evidence as complaint, the trial Court

rightly held that the same being the further statement of

the complainant under Section 161 of Cr.P.C. is

inadmissible in law.

16. PW.1 deposed that he found 8 to 10 persons

assaulting Devappa near the entrance of his village and he

went to his rescue. He further says that taking exception

to that, accused assaulted him with club on his head

causing him injuries. The specific overt acts attributed by

him to accused in his deposition are as follows:

i) Accused Nos.1, 2 & 8 assaulted him with club on his head.

CRL.A.No.3548/2013

ii) Accused No.3 assaulted Devappa with a club on the back of his head.

iii) Accused Nos.6 and 7 assaulted Devappa with stone and club and caused internal injuries.

iv) Accused No.5 assaulted with stone and club on the leg of Devappa.

v) Accused No.4 attempted to throttle Devappa.

vi) Accused No.9 instigating the other accused to finish Devappa, kicked Devappa by his legs.

17. When all the accused thinking that Devappa

died, dropped the weapons there only and went away.

PW.1 speaks about PWs.3 and 4 trying to pacify the

quarrel and withdrawing themselves due to fear and then

PW.5 coming to the scene of offence and shifting himself

and Devappa to Kembhavi Hospital. He deposed that after

taking treatment in Kembhavi Hospital, he went to

Kembhavi police station and got written the complaint and

filed the same. He also deposes about PW.5 on medical

advise taking Devappa to Gulbarga and from there to

Solapur for higher treatment and death of Devappa in CRL.A.No.3548/2013

Solapur Hospital. He also speaks about the motive for

commission of crime.

18. PWs.2 to 4 depose that when they had come to

have tea near the scene of offence, they found the accused

assaulting Devappa, PW.1 going to the rescue of Devappa

and accused assaulting him also. The specific overt acts

spoken by PWs.2 to 4 are as follows:

PW.2

(i) Accused Nos.1, 2 and 8 assaulted PW.1 with clubs on his head.

(ii) Accused No.3 assaulted Devappa with club on his head.

(iii) Accused Nos.6 and 7 assaulted Devappa with stone and club on his stomach.

(iv) Accused No.4 attempted to throttle Devappa.

(v) Accused No.5 assaulted on the leg of Devappa with the stone.

(vi) Accused No.9 instigating the other accused to finish Devappa.

PW.3

(i) Accused Nos.1, 2 and 8 assaulted PW.1 with clubs on his head.

CRL.A.No.3548/2013

(ii) Accused No.3 assaulted Devappa with club on the back of his head.

(iii) Accused Nos.6 and 7 assaulted Devappa with stone.

PW.4

(i) Accused Nos.1 and 2 assaulted PW.1 on his head with clubs.

(ii) Accused No.3 assaulted Devappa with club on his head.

19. As rightly pointed out by the trial Court, PWs.1

to 4 being the same villagers and PW.1 being the injured

eyewitness, their presence at the scene of offence is

natural and probable. Further in the evidence of PW.1 and

PW.8 the injuries suffered by PW.1 were not denied. The

evidence of PWs.1 to 4 was corroborated by the evidence

of PW.5 who shifts the injured to the hospital and the

medical evidence of PW.8 to the effect that PW.1 and

Devappa were taken to the hospital for treatment with a

history of assault.

20. It was contended that PWs.1 to 5 being the

relatives of the deceased, they are interested witnesses.

CRL.A.No.3548/2013

So far as PW.8 it was contended that he has not given

medico legal intimation to the police, therefore his

evidence is doubtful. PW.8 says that he has given only an

oral intimation to the police. As rightly pointed out by the

trial Court, admittedly, the accused and the deceased

party are related to each other. Thus, PWs.1 to 5 happen

to be the relatives of the accused and the deceased as

well. Therefore there is no merit in the contention that

PWs.1 to 5 shall be disbelieved for being relatives of the

deceased.

21. It is settled law that, all the witnesses/relatives

of the victim cannot be branded as interested witnesses

unless it is shown that implication or likely conviction of

the accused in such case is going to confer some benefit

on such related witnesses. In the entire cross-examination

of PWs.1 to 5, the accused did not even suggest that their

prosecution/conviction is going to benefit those witnesses.

Therefore the trial Court has rightly rejected such

contention of PWs.1 to 5 being interested witnesses. So

also the failure of PW.8 in making an entry in MLC register CRL.A.No.3548/2013

or issuing written MLC intimation to the police themselves

do not belie the evidence of PWs.1 to 5. PW.1 being the

injured eyewitness, as rightly pointed out by the trial

Court, carries higher credence.

22. So far as the contention of the Investigating

Officer not examining the independent witnesses, first of

all, there is no concrete evidence to show that some other

people had gathered at the scene of offence. Secondly, it

is the settled position of law that defective investigation if

any, itself does not demolish the evidence of the

eyewitnesses and the injured eyewitnesses, if the same is

found credible. Similarly, PWs.2 to 4 not going to the

rescue of PW.1 and Devappa itself does not make their

evidence unreliable as they say that being scared of their

safety they did not intervene. The evidence on record

shows that the accused armed with clubs and stones were

assaulting Devappa. The evidence further shows that when

PW.1 went to the rescue of Devappa, he suffered the same

fate. Under such circumstances, it is the natural human CRL.A.No.3548/2013

conduct that PWs.2 to 4 first think of their safety instead of

intervening between the assailants and the victims.

Moreover they say that they withdrew from the process of

rescue due to fear of assault. Thus the trial Court rightly

rejected the aforesaid contentions of the accused with

regard to the reliability of evidence of PWs.1 to 4.

23. So far as the contentions that there are

contradictions and inconsistencies in the evidence of PWs.1

to 4, the specific overt acts attributed by PWs.1 to 4 are

already extracted above. The incident took place on

24.04.2009. PWs.1 to 3 were examined on 28.02.2012.

PW.4 was examined on 29.02.2012. Thus it is clear that

they were examined before the Court about three years of

the incident. Therefore one cannot expect each of them to

reproduce the videographic account of the incident as

human memory is bound to fade in course of time.

Therefore the trial Court was justified in rejecting such

contentions so far as accused Nos.1 to 5.

CRL.A.No.3548/2013

24. Citing the fact that in the first information

report, PW.1 named only five accused, in further

statement he implicated 13 accused and the Investigating

Officer himself dropped 4 out of them, it was contended

that there was an attempt on the part of PW.1 to PW.4 to

falsely rope all the accused in the case, therefore accused

Nos.6 to 9 are entitled to the benefit of the said doubt. The

trial Court rejected such contention on the ground that

since PW.1 was illiterate he might be unaware of the

omission of accused Nos.6 to 13 in the complaint.

25. It is to be noted that the incident took place on

24.04.2009 at 8.30 a.m. The first information report was

registered on the same day at 1.00 p.m. The first

information report was delivered to the Magistrate on the

same day at 6.25 p.m. The trial Court itself held that Ex.P2

the alleged second complaint was inadmissible in evidence.

Neither PW.1 nor PW.11 who registered the first

information report and received Ex.P2 do not state when

exactly Ex.P2 was given. PW.11 says that after registering CRL.A.No.3548/2013

the first information report, he visited the hospital at

Kembhavi, then visited the scene of offence at Shakapura,

there PW.1 gave another complaint as per Ex.P2

implicating thirteen persons. The evidence of PWs.1 and 11

coupled with Ex.P3 spot mahazar, PW.6 the spot mahazar

witness show that PW.11 conducted the spot mahazar on

that day between 4.00 p.m. and 5.00 p.m. If the names of

other accused were revealed on the same day, naturally by

the time Ex.P13 was delivered to the Magistrate, the

names of other accused should also have been forwarded

to the Court. It is also material to note that out of 8

additional accused, the Investigating Officer himself found

that material against four of them was not sufficient to lay

the charge sheet.

26. In the first information report, the overt acts

were attributed only against accused Nos.4 and 5. As

spoken by PW.1 himself, accused Nos.1, 2 and 6 were full

brothers and accused No.3 is the father-in-law of accused

No.1. Accused Nos.3, 5 and 8 are full brothers. Accused CRL.A.No.3548/2013

Nos.7 to 9 were also closely related to accused No.1.

Therefore the chance of PW.1 implicating them after

deliberations in the background of the incident cannot be

ruled out. When there is no material to bridge such gap,

convicting and sentencing accused Nos.6 to 9 despite such

gap, based on inferences and hypothesis is likely to lead to

injustice to them. Therefore, appellant Nos.5 to 8/accused

Nos.6 to 9 are entitled to acquittal on the ground of benefit

of doubt.

27. So far as the defence contention with regard to

delay in registering and delivering the FIR, the trial Court

rightly held that the first concern of PW.1 who himself was

injured and PWs.2 to 4 was to attend to the medical needs

of PW.1 and the deceased. Therefore delay if any was

comprehendible. Further there was no inordinate delay so

as to deny the genesis of the incident. Similarly, the trial

Court rightly rejected the contention that PW.3's evidence

to the effect that the accused picked up the sticks lying

nearby shatters the evidence of PWs.1, 2 and 4 the other CRL.A.No.3548/2013

eyewitnesses. Since PW.1 was the injured eyewitness, his

evidence carries more weight as compared to PW.3.

Moreover, having regard to the time gap between the

incident and the examination of PW.3 before the Court,

such omissions or contradictions are bound to occur and

they are natural.

28. Relying on the evidence of PW.13 and Ex.P19,

it was contended that the injuries of Devappa were due to

fall and the trial Court committed error in overlooking such

evidence. It is no doubt true that in Ex.P19 the case sheet

of Devappa, he was allegedly brought to the hospital with

the history of fall. Soon after the incident on 24.04.2009 at

the first instance in Kembhavi Hospital and in the police

station, the history of assault was given. The doctor by

name Dr.S.Prabhakar who said to have made such entries

in Ex.P19 on 25.04.2009 at 9.20 p.m. was not examined.

PW.13 was not aware of the name of the person who gave

such history. He says that he has not recorded the history.

CRL.A.No.3548/2013

Therefore the evidence of PW.13 in that regard was only

hearsay evidence.

29. Similarly, the evidence of PW.9 the Assistant

Sub-Inspector of Police, Solapur police station, Solapur

with reference to MLC intimation cannot be relied as the

person who made entries in MLC register or issued MLC

intimation was neither named nor examined. He himself

states that on 26.04.2009 he recorded the statement of

PW.5. He further states that PW.5 in his statement Ex.P9

revealed that accused Nos.1 to 5 and 8 assaulted his

brother Devappa with sticks and caused him injuries. The

above facts and circumstances go to show that the entries

in Ex.P19 with regard to history of fall do not inspire the

confidence of Court. Therefore the trial Court was justified

in accepting the evidence of injured eyewitness, other

eyewitnesses and other evidence on record as against

Ex.P19 and ocular evidence relating to that.

30. In the light of the aforesaid discussions, there

are no grounds to interfere with the order of conviction CRL.A.No.3548/2013

and sentence passed against appellant Nos.1 to 4 and only

the judgment and order with regard to appellant Nos.5 to

8 needs to be set aside. Hence the following:

ORDER

(i) The appeal is partly allowed.

(ii) The impugned judgment and order of

conviction and sentence passed against appellant Nos.5 to

8/accused Nos.6 to 9 is hereby set aside. They are

acquitted of all the charges brought against them.

(iii) The order of conviction and sentence passed

against appellant Nos.1 to 4/accused Nos.2 to 5 for the

offences punishable under Sections 143, 147, 148, 324

read with Section 149 of IPC and Section 302 read with

Section 149 of IPC is hereby confirmed.

(iv) The order of the trial Court with regard to

payment of compensation and disposal of the property is

maintained.

(v) Appellant Nos.1 to 4/accused Nos.2 to 5 shall

surrender before the trial Court forthwith.

CRL.A.No.3548/2013

(vi) The trial Court shall issue the modified

conviction warrant accordingly.

(vii) Registry shall transmit the records and

communicate the order to the trial Court forthwith.

Sd/-

JUDGE

Sd/-

JUDGE

AKC/KSR