State vs Krishna and Others

N. Ananda, J.—The respondents (hereinafter referred as accused 1 to 8'') were tried and convicted for offences punishable under sections 143, 454, 448, 323 & 506 r/w 149 IPC and also for an offence punishable u/s 2 of the Karnataka Prevention of Destruction and Loss of Property Act, 1981 (for short, "the Act"). Therefore, they were before I-appellate court in Criminal Appeal No. 277/2007. The learned Judge of I-appellate court on re-appreciation of evidence, acquitted accused 1 to 8 of aforestated/offences. Therefore, State is in appeal before this court. I have heard Sri B. Visweswaraiah, learned HCGP for State and Sri P. Chandrashekar, learned counsel for accused.

The accused were tried for aforestated offences on the following allegations:--

On 01.06.2005, at about 11.45 a.m., accused 1 to 8 formed into unlawful assembly to assault PW1-B.K. Lokesh and also to disturb functioning of Babu Jagajeevanram High School situate in Rajiv Nagar at Mysore. In furtherance of the common object of unlawful assembly, accused No. 2 broke open lock and committed trespass. In the course of same transaction, accused No. 3 assaulted PW1-B.K. Lokesh (Head Master), PW2-B.S. Kantharaju (Assistant Teacher) and PW4-Govindegowda (Physical Education Teacher) of Babu Jagajivanram High School in Rajiv Nagar at Mysore. There was dispute between accused No. 1-Krishna and PW1-B.K. Lokesh regarding management of said school. Accused No. 1 had formed unlawful assembly to wreck vengeance and to destabilise management of school.

The first part of incident relates to trespass and breaking of door of room of Head Master by accused No. 2 at the instigation of accused No. 1. The second part of incident relates to trespass committed by accused 1 to 8 to assault PW1, PW2 & PW4 and cause damage to school properties. PW1-B.K. Lokesh, PW2-B.S. Kantharaju and PW4-Govindegowda were injured in incident of assault. The accused had also intimidated and threatened lives of PW9- Kharar Mehandi and PW10-Harish, students of X standard of Babu Jagajivanram High School.

The learned trial Judge accepting evidence of injured witnesses and other independent witnesses held accused. guilty of aforestated offences. The learned Judge of I-appellate court on re-appreciation of evidence has held that evidence of PW1, PW2 & PW4 is highly interested. There was dispute regarding management of school between accused No. 1 on one side and PW1, PW2 & PW4 on other side. On the date of incident viz 01.06.2005, admission of students to school was going on. Accused No. 1 being President of Babu Jagajivanram High School had gone to supervise the process of admission. Therefore, allegations of mischief and trespass are false. The injured witnesses have given inconsistent evidence. The evidence of other independent witnesses does not inspire confidence. The allegations of mischief and destruction of properties of school are not proved by prosecution.

On reconsideration of the matter, I am of the opinion that evidence of prosecution witnesses has to be appreciated bearing in mind delay in lodging first information and further delay in dispatching first information report to jurisdictional Magistrate and prior enmity existing between accused No. 1 and some of the prosecution witnesses.

The first part of incident is alleged to have taken place at about 9.30 a.m., on 01.06.2005. The second part of incident is alleged to have taken place at about 11.45 a.m. on 01.06.2005. It is seen from the contents of first information report that the distance between place of incident and jurisdictional police station is two kilometers.

As per the evidence of PW1, his statement (first information of incident) was recorded by jurisdictional Police Officer at 10 a.m., on 02.06.2005. The first information not only bears signature of PW1-B.K. Lokesh, but also bears signatures of PW2-B.S. Kantharaju & PW4-Govindegowda. However, in first information report marked as Ex. P.8, we find name of first informant as B.K. Lokesh (PW1). We do not find the names of two other informants. PW1 has not given satisfactory explanation for lodging first information after 24 hours of alleged incident, though jurisdictional police station is situate at a distance of two kilometers from place of incident.

During cross-examination, PW1 has admitted that on the date of incident at about 11.45 a.m., he had gone to jurisdictional police station and orally informed the matter to police. The information given by PW1 at about 11.45 a.m., on 01.06.2005 has been suppressed.

If accused had trespassed into school and assaulted school teachers, including PW1 (Head Master) and intimidated students, there was no reason for PW1 for not lodging first information till 10 a.m., on the following day viz 02.06.2005. It is seen from the contents of first information report, the jurisdictional Magistrate had received the first information report at 10.45 a.m., on 03.06.2005. The jurisdictional police had withheld the first information report. for a day, though jurisdictional court is situate in the same place. The delay in dispatch of first information report to jurisdictional Magistrate would further strengthen suspicion on the contents of first information.

The delay in lodging first information is not fatal if the first informant or concerned prosecution witnesses were to offer reasonable explanation. In the case on hand, there is no reasonable explanation for belatedly lodging first information. On the other hand, evidence of PW1 would reveal that soon after incident viz at about 11.45 a.m., on 01.06.2005, he had gone and orally informed police of the incident. The oral information had disclosed cognizable offences. In the circumstances, jurisdictional Police Officer had deliberately suppressed oral first information. The Investigating Officer had obtained a computerised typewritten first information at about 10 a.m., on the following day viz 02.06.2005. Even the point of time mentioned in first information report said to have been recorded at about 10 a.m., on 02.06.2005 cannot be ensured for the following reasons:--

In the first information as per Ex. P.1, PW1-B.K. Lokesh, PW2-B.S. Kantaraju and PW4-Govindegowda are shown as informants. In the first information report as per Ex. P.8, PW1 is alone shown as the first informant. The Investigating Officer had not offered any explanation for retaining the first information report in jurisdictional police station till 10.45 a.m. on 03.06.2005.

PW1, PW2 & PW4 are stated to be injured witnesses. PW1, PW2 8b PW4 have deposed that incident of assault had taken place around 11.30 a.m. (morning) on 01.06.2005 and they had suffered injuries. However, medical evidence of PW13-Dr. S. Latha and contents of wound certificates as per Ex. P.5 to Ex. P.7 would reveal that PW1, PW2 8& PW4 were examined by PW13-Dr. S. Latha, Medical Officer in K.R. Hospital at Mysore between 11.15 p.m. and 11.25 p.m. (night) on 01.06.2005.

At this juncture, it is relevant to state that K.R. Hospital and place of incident are situate within Mysore city. The distance between two places is around 5 kilometers.

It is noticed from wound certificate marked as Ex. P.7 PW1- B.K. Lokesh had suffered following injuries:--

I. A contusion on left cheek measuring 1/2 cm x 1/2 cm PW1 complained of pain in occipital area

PW1 had given history of injury as due to assault by accused No. 3-Javaraiah and accused No. 4-Kumar at about 12 noon on 01.06.2005 near Babu Jagajeevanram High School ground with hands.

The wound certificate marked as Ex. P.6 would reveal that injured namely PW2-B.S. Kantharaju had not suffered any visible injuries, however he complained of pain on back and lumbar region. PW2 had given history of injury due to assault by accused No. 1-Krishna and accused No. 4-Kumar at about 12 noon on 01.06.2005 near Babu Jagajeevanram High School ground. PW2 has stated that he was assaulted and pushed by above accused.

The wound certificate marked as Ex. P.5 relating to PW4-Govindegowda would reveal that PW4 had suffered following injuries:--

I. An abrasion on base of thumb and left dorsum measuring 1/2 cm x 1/4 cm.

PW4 complained of pain on left side of chest.

PW4 had given history of injuries due to assault by accused No. 4-Kumar and accused No. 5-Venkatamma at about 12 noon on 01.06.2005 near Babu Jagajeevanram High School ground.

PW1, PW2 & PW4 have not offered any explanation for not rushing to K.R. Hospital at Mysore, immediately after the incident. If they had suffered injuries, their natural conduct would have been to rush to hospital for treatment. The injured witnesses had gone to K.R. Hospital at Mysore after 12 hours from time of incident of assault. The injured witnesses namely PW1, PW2 & PW4 have not offered any explanation for delay in going to hospital for treatment. PW1 PW2 & PW4 have not deposed as to where they were staying after incident of assault, till they had gone to hospital for treatment. The history of assault given by PW1, PW2 & PW4 before PW13-Dr. S. Latha at K.R. Hospital is the first information of incident. In the history given before the Medical Officer,. PW1, PW2 & PW4 have not referred to presence of other accused other than accused No. 1-Krishna, accused No. 3-Javaraiah, accused No. 4-Kumar and accused No. 5-Venkatamma. It appears there were deliberations between prosecution witnesses before the first information was lodged at about 10 a.m., on 02.06.2005 to implicate all accused and to give a definite shape to the case of prosecution.

From the evidence of PW1, PW2 & PW4, we find that accused No. 1 was the President of Babu Jagajeevanram High School and there was dispute regarding management of school between accused No. 1 on one side and PW1 and other teachers on the other side. The disputes got aggravated after salaries of teachers of said school were admitted to grant-in-aid.

PW1 has deposed; on the date of incident at about 9.45 a.m., he had gone to school; accused No. 2 was sitting in room of Head Master (PW1); PW1 questioned accused No. 2 as to why he was sitting in his chair; accused No. 2 told that accused No. 1 had sent him; after some time, accused No. 2 left the room of PW1; on the same day at about 11.45 a.m., accused 1 to 8 came to school; accused No. 3 assaulted on head of PW1 and accused No. 4 held collar of PW1 and slapped him; accused No. 1 held out threats to life of PW1; accused No. 5 abused PW1 in a filthy language; accused No. 1 pushed PW1 out of the school; at that time, students and other teachers questioned accused as to why they were assaulting PW1; at that time, accused 6, 7 & 8 referring to one of the students as "Sabi", threatened him to go out; PW4-Govindegowda was teaching the students in a class room; accused No. 4 dragged PW4 from the class room and assaulted him with an object, as a result PW4 suffered bleeding injuries; on the same day, in afternoon PW1 had gone to police station and lodged a written complaint. PW1 has identified first information at Ex. P.1.

At this juncture, it is relevant to state that contents of first information (Ex. P.1) would reveal that it was lodged at 10 a.m. on the following day viz 02.06.2005.

During cross-examination, PW1 has admitted that there was dispute between management and PW1. PW1 has admitted that on 10.03.2005, accused No. 1 had removed PW1 from service; on the date of incident, one Basavaiah was working as Peon. The said Basavaiah was not examined before the trial court. Accused No. 2 had occupied seat of PW1, even before PW1 had reached the school. PW1 has admitted that on the date of incident at about 11.45 a.m., he had gone to police station and orally informed the incident to police. Thus, we find evidence of PW1 is not free from reasonable doubts.

PW2-B.S. Kantharaju has deposed; on 01.06.2005 at. about 9 a.m., when he had gone to school, accused No. 2 was sitting in staff room; when PW2 questioned accused No. 2, he told PW2 that he was sent by accused No. 1 and left that place.

At this juncture, it is necessary to recall evidence of PW1 that accused No. 2 was sitting in chamber of PW1 (Head Master). PW2 has deposed; on the date of incident at about 11.45 a.m. when he was teaching students of IX or X standard students; accused No. 1 to 8 came in a group and assaulted PW1; at that time, PW1 was in staff room. PW2 has deposed; accused No. 3 assaulted on head of PW1; when PW4 questioned accused, PW4 was assaulted by accused No. 4 with some object and caused injuries to him; two amongst accused pushed PW2 out of school.

During cross-examination, PW2 has admitted that he had received notice from management (Babu Jagajeevanram Trust) for irregularly attending school. PW2 has denied the suggestion that accused No. 1 was the President of Babu Jagajeevanram Trust and the trust was running aforestated school. During cross-examination, PW2 has admitted that he did not observe whom amongst accused assaulted P.W4.

PW3-K.N. Vinoda (Teacher) has not supported the case of prosecution. PW3 was declared as a hostile witness.

During cross-examination by the learned Public Prosecutor, PW3 has supported the case of prosecution. During cross-examination by the learned counsel for accused, PW3 has given a go by to the case of prosecution. Therefore, PW3 is not a reliable witness.

PW4-Govindegowda has deposed; on 01.06.2005 at about 9.45 a.m., he had gone to school; at that time, accused No. 2 was sitting in the chamber of Head Master (PW1); when PW1 questioned accused No. 2, he told that he had been sent by accused No. 1 and left that place.

At this juncture, it is relevant to recall evidence of PW2, who has deposed that accused No. 2 was sitting in the staff room. PW2 has not deposed that accused No. 2 had broken lock and he was sitting in the room of Head Master.

PW4-Govindegowda has deposed that accused No. 3 had assaulted PW1; when PW4 tried to save PW1, accused No. 4 assaulted on left thumb of PW4 with a stone; accused also intimidated students.

During cross-examination, PW4 has admitted during year 1993, accused No. 1 was the Vice-President of Babu Jagajeevanram Trust. PW4 has denied suggestion that accused No. 1 had warned PW4 to regularly attend school.

PW4 has deposed; he had suffered bleeding injuries at about 11.45 a.m. As already stated, PW4 had gone to K.R. Hospital after 12 hours from time of incident i.e., at about 11 p.m., on 01.06.2005. If PW4 had suffered injuries, his natural conduct would be to rush to hospital for treatment of injuries.

PW5-Indira was a social worker. PW5 has deposed; on 01.06.2005, PW5 had taken certain students for getting them admitted to Babu Jagajeevanram High School; at that time, some of school teachers questioned accused No. 2 as to why he had broken lock; accused No. 1 brought 10 to 15 persons and forced teachers to leave school; accused No. 3 assaulted on head of PW1; accused No. 4 slapped PW1; when public tried to intervene, accused, No. 1 threatened them with dire consequences.

At this juncture, it is necessary to recall evidence of PW1 and PW4, who have deposed; accused No. 2 had broken lock of room of head master at about 9.30 a.m. Thus, evidence of PW5 that accused No. 2 had broken lock at about 11-11.30 a.m., on 01.06.2005 is not free from reasonable doubt. The evidence of PW5 that accused No. 1 had brought 10 to 15 persons and accused No. 1 threatened PW1 and other teachers of dire consequences is not consistent with evidence of PW1, PW2 & PW4.

PW6-Radhamma has deposed; accused No. 3 assaulted PW1 when PW1 was teaching students of VIII standard. However, PW1 has not deposed that accused No. 3 assaulted him when he was in a class room.

PW7-Shyamsundar has not supported the case of prosecution and he was declared as a hostile witness.

The evidence of PW8-Marisiddegowda, the then Head Constable of Udayagiri Police Station at Mysore relates to arrest of accused.

PW9-Kharar Mehandi has deposed; on 01.06.2005 at about 9.30 a.m., some one had broken lock of school; at that time, PW1 was teaching X standard students in a class room; accused 1 to 8 came in an autorickshaw and assaulted PW1, PW2 & PW4.

The evidence of PW9 that accused 1 to 8 simultaneously assaulted PW1, PW2 & PW4 is contrary to evidence of PW1, PW2 & PW4.

During cross-examination, PW10-Harish has deposed; on 01.06.2005 at about 9.30 a.m., he had gone to school, some one had broken the door of chamber of Head Master; on the same day, at about 11.30 a.m., or 12 noon, 10 to 15 persons had come to place of incident. PW10 has identified accused 1 & 2. PW10 has deposed; accused 1 & 2 dragged PW1 from class room and assaulted him; they also assaulted PW2 & PW4.

It is not the evidence of PW1, PW2 & PW4 that accused 1 to 8 had assaulted them and PW1 was dragged out of the class room.

During cross-examination, PW10 has admitted that accused No. 1 was the President of school. PW10 has deposed; 01.06.2005, was re-opening day of school; accused No. 1 had come to school to oversee admission of students.

Thus, from evidence of PW10, we find case put forth by prosecution witnesses that accused No. 1 was the member of unlawful assembly and he had brought accused 2 to 8 to commit mischief and cause damage to school and assault. school teachers cannot be accepted. The learned trial Judge has ignored these material discrepancies found in evidence adduced by prosecution witnesses. The learned Judge of I-appellate court on re-appreciation of evidence has rightly acquitted accused 1 to 8. There are no reasons to interfere with the impugned judgment. In the result, I pass the following:--

ORDER

The appeal is dismissed.