State of Karnataka vs Shivappa and Others

Budihal R.B., J.

This appeal is preferred by the State being aggrieved by the common judgment dated 30.06.2008 passed by the Presiding Officer, Fast Track Court, Bhalki in S.C. No. 150/2005 clubbed with S.C. No. 80/2004 acquitting the respondents-accused of the offences punishable under Sections 120-B, 143, 147, 148, 341, 504, 324, 506, 302 read with Section 149 of Indian Penal Code. The appellant-State challenged the legality and correctness of the judgment of the Trial Court on the grounds mentioned in the appeal memorandum.

Perusing the materials, the case of the prosecution as per the complaint Ex. P3, PW-8 Smt. Subbamma lodged the complaint stating that she was residing in the address mentioned in the complaint, having one son by name Anand and three daughters, namely, Sharamma, Jagadevi and Premala. Earlier occasion accused No. 1 assaulted complainant''s daughter Sharamma and caused injuries and in that connection complaint was lodged and Nataraj PW-6 was the witness on the side of the complainant and because of that reason earlier to this incident, said Nataraj was also assaulted and complaint was filed in the police station. On 12.10.2003 at about 8.30 p.m. complainant, her brother Ganapat Rao PW-7, her daughter Sharamma PW-4 and her daughter-in-law Meera Bai PW-5 were in the house and they heard hue and cry towards the Hanuman temple and immediately they all went there and saw in the light that the accused persons were assaulting Anand with the clubs and accused No. 1 Shivappa assaulted Anand with axe on his head and caused bleeding injuries and other accused persons assaulted Anand with the wooden clubs. At that time Sharamma PW-4 went to the rescue of Anand and she was also assaulted by accused Santosh with the club on her left knee portion and also right knee portion and left elbow portion and caused injuries. In the meanwhile Nataraj PW-6, Ganapat Rao PW-7 and Sheipu PW-27 came and pacified the quarrel. Because of the election dispute and enmity the accused persons were intending to commit the murder of Anand. Because of injuries, Anand was lying The complainant PW-8, Nataraj PW-6, Ganapat Rao PW-7 and Meera Bai PW-5 put him into another vehicle and shown to the doctor and doctor declared that he is already dead. On the basis of said complaint, case was registered in Khatak Chincholi Police Station in Crime No. 78/2003 against nine accused persons as mentioned in the F.I.R. for the offences punishable under Sections 147, 148, 504, 326, 302 read with Section 149 of Indian Penal Code. After conducting and completing the investigation, police have filed the charge sheet for the offences punishable under Sections 143, 147, 148, 504, 506, 341, 324, 302, 120-B read with Section 149 of Indian Penal Code.

Prosecution in support of its case in all examined before trial court 30 witnesses as PWs-1 to 30 and got marked Exs. P-1 to P-16 and material objects M.O.s-1 to 15. During the course of cross-examination defence got marked Exs. D-1 to D-6.

Heard the arguments of the learned Additional State Public Prosecutor for the appellant-State. Learned counsel appearing for the respondents is absent. No representation.

Looking to the case of the prosecution PWs-1 and 2 who are said to be the panch witnesses for the spot mahazar wherein the clubs and axe are said to have been seized under the panchanama, turned hostile and not supported the case of the prosecution. Even during the course of cross-examination of these two witnesses, nothing has been elicited from the prosecution to believe the story of the prosecution that in their presence spot panchanama was conducted and the material objects axe and the clubs were seized from the spot.

PWs-9 and 10 who are said to be the panch witnesses for the seizure of blood stained clothes of the deceased have also not supported the prosecution case. They have turned hostile.

PW-11 is the driver of the jeep who carried injured in his jeep from Kurub Khelgi has also turned hostile. Even in the cross-examination by the public prosecutor nothing is elicited about the prosecution case.

PWs-12 to 15 are the independent eyewitnesses to the incident. They have also not supported the case of the prosecution and nothing further has been elicited during their cross-examination. Therefore, as per the prosecution version, the eyewitnesses who are said to have supported the prosecution case are PW-4 Sharamma, PW-5 Meera Bai, PW-6 Nataraj, PW-7 Ganapati, PW-8 Subbamma who is the complainant and PW-27 Sheipu. Let us examine the evidence of these six witnesses whether it will inspire the confidence of this Court that really they are the eyewitnesses to the incident and seen the incident.

Subamma PW-8 stated in her complaint Ex. P3 that when they were in the house, towards the Hanuman temple they heard the hue and cry and immediately they all went there and saw the accused persons assaulting her son Anand. So this averment in the complaint goes to show that they went to the spot when the incident was already going on and the accused persons were assaulting Anand. But looking to her oral evidence she has deposed totally a new story. In the examination-in-chief she deposed that they were sitting in the house of Sharamma waiting for the arrival of Anand and at that time they noticed the accused proceeding on the road in front of the house of Sharamma by saying that Venkat will bring Anand and let them assault Anand. They proceeded ahead. Herself, her daughter and brother followed them. At that time a jeep came and stopped near panchayat office. Her son Anand, Nataraj PW-6 and accused No. 11 Venkat got down from the jeep. Then all the accused started to assault her son. Looking to this evidence of complainant before the Court in the examination-in-chief it goes to show that before starting the incident they were very much present on the spot. So this evidence of PW-8 is inconsistent and totally contrary to her own complaint version Ex. P-3. Regarding these assertions that she has deposed in her evidence before the Court, the evidence of PW-25 the Head Constable is necessary to be referred wherein at para-4 in the cross-examination portion PW-25 Shivappa Head Constable No. 759 deposed on oath in his evidence that complainant Subamma, while lodging her complaint had not stated that on that date of incident in the afternoon accused No. 11 Venkat had carried her son and Nataraj by coming over to her house. Likewise she had not stated that her son did not return till 8.00 PM, she, her brother and her daughter-in-law went to the house of Sharamma while they were waiting in the house of Sharamma, the accused and some other women folks passed in front of that house by raising slogan and they followed the accused to Kalidasa Katta and at that place the accused attacked Anand and assaulted Anand by chasing upto Hanuman temple. Likewise in her complaint she had not stated that while they were near Kalidasa Katta they had noticed the arrival of a jeep and alighting of her son, Nataraj and accused No. 11 from that jeep and accused Nos. 6 to 8 by coming from the opposite direction of Anand has assaulted Anand by clubs. Looking to her evidence in the cross-examination, she has deposed as true that CW-6 to CW-8 had worked for her during the elections. So also CW-12 Nataraj had worked for her during the elections. She has also admitted as true that since long in elections of their village there will be two political rival groups, one headed by accused No. 1 Shivappa and another by CW-7 Vijay Kumar and his father. She has also admitted as true that accused No. 1 Shivappa and CW-7 Vijay Kumar are not on talking terms. Her cross-examination further goes to show that she has admitted as true that her daughter Sharamma had initiated another criminal case against accused Nos. 1 to 4 herein and CW-6 and CW-7 herein and one Mallikarjun are the witnesses in that case also. Further has admitted as true that CW-12 Nataraj has initiated another case against accused Nos. 1 to 3 herein and in that case her son Anand and her nephew by name Mallikarjun Sherikar are shown as witnesses. She further deposed that any hue and cry or disturbance taking place near Hanuman temple is not audible in her house. It is her further evidence before the Court that there are three or four STD booths in their village since 4 to 5 years and normally they will be open till 9.00 P.M. Anand has sustained bleeding injuries and his body was completely blood stained. Blood was also stained even to her clothes and the clothes of her daughter-in-law and blood had even fallen in the police jeep. They had not given any case history to the doctor at Bhalki. On the date of funeral, police have not enquired her and police have not taken her statement twice. She denied the suggestion that on 02.12.2003 she had given statement before the I.O. by stating that on the say of some others she had falsely implicated 10 other persons in the earlier statement and the said portion of the statement was marked as Ex. D-1. Police had not seen the blood stained clothes of herself and her daughter-in-law. She had not pointed the blood stained clothes of herself and her daughter-in-law to the police.

Coming to the evidence of her daughter Sharamma PW-4 she has deposed in her evidence in the examination-in-chief that about 2 1/2 years back on one day at about 4.00 p.m. she had gone to the house of her mother and was having conversation with her mother, brother and other members of the family at that time accused No. 11 Venkat Sajani came there and asked her brother to accompany him to Bhalki to attend the political public function of their caste leader Sidramayya. Her brother agreed to accompany him and he said "let us carry Nataraj also". Her brother went to the house of Nataraj and brought him. Thereafter all the three went to Bhalki. On the same day at about 8.00 p.m. while she was in the house of her in-laws, her mother, wife of deceased Anand and her uncle came to her house and told that Anand has not yet returned. They all sat in her house awaiting the arrival of Anand. Shortly thereafter, they heard the cry of accused No. 1 Shivappa and other inmates of the house, on the road passing in front of her house. They were uttering the words "let us finish Anand". They came outside and followed them towards panchayat office and they noticed a jeep standing near Panchayat office. Nataraj PW-6, accused No. 11 Venkat and her brother Anand got down from that jeep. Then accused No. 1 Shivappa and other inmates of his house including ladies surrounded Anand, accused No. 2 Santosh assaulted by a club on the left shoulder of Anand accused No. 3 Manjunath assaulted by club on the back of Anand, accused No. 4 Jayappa assaulted by club on the legs, accused No. 5 Mallan and accused No. 10 Tukaram also assaulted by clubs. The women folks abused them by saying "Randere" and threatened that if they intervene, they will be assaulted. Jagadevi, Kamala Bai, Sangeeta, Gandhiyamma, Hema, Kavita @ Sunita had abused and threatened them. Her brother Anand ran towards the Hanuman temple to get himself saved. Accused No. 6 Srinivas, accused No. 7 Irappa and accused No. 8 Babu came from his opposite direction armed with clubs, started to assault Anand, Then accused No. 1 Shivappa bet Anand with sword. Anand fell down raising hue and cry and she rushed to rescue and fell on him, then accused No. 2 Santosh said that this bitch has survived earlier, kill her and he assaulted her by club on various parts of her body. Meanwhile, police jeep came at the scene of occurrence and prior to that one Sridhar, Naganna, Mallappa and Sunil had came to the spot in a Tom-Tom. Sndhar, by placing his leg on the body of her brother and twisted his hand and other three kicked her brother. On arrival of the police jeep, all the assailants fled away by throwing the axe and clubs on the spot. Anand was lying injured and he was not talking. He was carried to the Government hospital Bhalki in the police jeep. On that night she stayed in the house to look after the small children and on the following morning she had come to Government hospital Bhalki for treatment and came to know that Anand is already dead. In the cross-examination, she deposed it is true that CW-6 to CW-8, CW-12 and CW-13 and themselves are belonging to one group. On the following day of the date of death of her brother she was brought to hospital at 8.00 AM. Her statement was not recorded on 13.10.2003. When she came to the hospital CW-6 to CW-8 were in the hospital. Police had recorded her statement only once on 14.10.2003. She denied the suggestion that she had given one more statement on 02.12.2003 which is marked as per Ex. D-2. During the incident her clothes were blood stained. She had come to the hospital by wearing the very same clothes, neither the doctor nor police officers have demanded and seized such clothes so far. She denied the suggestion that on the next day police had referred her to Govt. hospital at Bhalki and she was treated by injecting saline.

PW-5 Meera Bai who is the wife of the deceased also deposed in her evidence in the examination-in-chief that till 8.00 pm her husband did not return therefore herself, her mother-in-law Subamma and her father Ganapat Rao went to the house of her sister-in-law Sharamma PW-4. She expressed that her husband may return back within short time. So they kept waiting. At that time accused No. 1 Shivappa and other inmates including the women folk of his house passed in front of the house of Sharamma by saying that Venkat is bringing Anand and let us teach lesson to him. They were armed with clubs. On hearing those threatening words they got frightened and followed them and when they were near Panchayat office, a jeep stopped at that place and from that jeep accused No. 11 Venkat, her husband Anand and Nataraj got down. Her husband started to proceed towards Kalidasa Katta. Accused No. 2 Santosh approached him and assaulted him with club on his left arm and other accused also assaulted him. Sunil placed his leg on the chest of Anand and twisted the hand. During the course of cross-examination she deposed that police had not recorded her statement at the time of inquest. She denied the suggestion that on 02.12.2003 she had given further statement stating that earlier she had involved 10 other persons on the say of other persons and it is marked as per Ex. D-3. She further deposed that she had carried her husband on the lap in the jeep and as such her sari was blood stained. The blood had fallen even in the jeep. The police have not collected her blood stained sari. While travelling in the jeep she had not disclosed the details of incident to the police. Likewise, her mother-in-law and other persons who were travelling in the jeep had not disclosed the incident of assault to the police. Police recorded her statement on the following day of funeral of her husband.

PW-6 Nataraj has deposed in his evidence in the examination-in-chief that on 12.10.2003 at about 1.30 PM while he was returning back from the land Anand, Venkat, Subbamma and Ganapat Rao were sitting in front of the house of Anand. Anand asked him to join them to attend the function of Deputy Chief Minister at Bhalki. He agreed and went home to take bath. After some time Anand sent his son to his house thereafter himself, Anand and Venkat came to Bhalki. Then they came to know that there is no function. They consumed some drinks in a bar and thereafter by boarding a private jeep they went back to their village at about 8.00 PM. They got down from the jeep near panchayat office of their village. Then Venkat declared that his work is finished and he left the place. Accused persons viz. Santosh, Shivappa, Mallikarjun, Jayappa and Tukaram surrounded Anand. Due to fear he stood at little distance. The woman folk of the house of accused Shivappa were standing at the spot. Accused Santosh assaulted Anand on the left hand by a club, accused Tukaram assaulted by club on arm, Jayappa and Mallikarjun assaulted by clubs on the back of Anand. Anand by raising cry ran towards Hanuman temple at that time Srinivas, Iranna and Baburao came from the opposite direction and by stating that let us kill Anand, assaulted Anand by clubs. Accused No. 1 Shivappa assaulted on the head of Anand by axe. Anand fell down by raising the cry again. Meanwhile Sridhar, Sunil, Mallikarjun came in a Tom-Tom, mahadev was the driver of that Tom-Tom, Sridhar stepped his leg on the chest of Anand and twisted the left hand of Anand. Mallikarjun and Sunil kicked Anand. Smt. Sharamma sister of Anand rushed and fell on Anand to save him. Accused Santosh assaulted on her leg by club. At the same time, police jeep came to the spot on seeing the jeep assailants threw down their respective weapons and fled away and they carried Anand to Bhalki hospital in police jeep. In the cross-examination this witness deposed that while carrying Anand to Bhalki from the spot they had not reported the incident to the police who was travelling in the jeep. He had assisted other in putting Anand in the police jeep, in the process his clothes were blood stained. The blood of Anand had fallen even in the police jeep. At that time police had not recorded his statement. On that day police had not recorded his statement in his village. He denied the suggestion that he is deposing falsely to the effect that at Bhalki they had consumed alcohol drinks and had returned back to Kurub Khelgi village at 8.00 p.m. in a jeep.

Looking to the evidence of Ganapati PW-7 he also deposed in his evidence in the examination-in-chief about they proceeding to the house of Sharamma and Anand not returned and Sharamma said that within short time he may return and asked to wait in the house. Then they were sitting in the house. They noticed accused Shivappa, Santosh, Jayappa, Mallikarjun, Tukaram, Iranna, Manjunath, Naganna and some other ladies proceeding towards panchayat office. They were armed with axe and clubs. They were saying that Venkat will bring Anand and let them kill Anand. They proceeded towards the panchayat office and they followed them. They were standing in a corner at Gandhi chowk. Meanwhile jeep came and stopped at Gandhi chowk. Anand, Nataraj and accused Venkat got down from the jeep and he has also narrated in detail about the assault made by the accused on Anand and when Sharamma rushed to the rescue of Anand she fell on him. Meanwhile Sridhar, Sunil Kumar, Mahadappa Laxuman Kamble and Naganna reached to the spot in a tom-tom. Sndhar by putting his leg on the chest of Anand, twisted the left hand of Anand. At that time a police jeep came to the spot. Then they stepped forward from the hidden place and noticed that Anand had sustained number of bleeding injuries. They carried him in a police jeep to the hospital. In the cross-examination he has deposed that statement was recorded by the police on 14.10.2003 i.e. only one statement recorded by the police. He denied the suggestion that before the police he had given one more statement by stating that in his earlier statement he had involved 10 other persons falsely on the say of some others and the said portion of the statement was marked as per Ex. D-4.

PW-27 one Sheipu also claims to be eyewitness as per the case of the prosecution and he has deposed in his evidence in the examination-in-chief that about three years back on one day at about 20 hours he was proceedings towards the open land in their village to answer call of nature at that time a jeep came near Panchayat office. Anand, Nataraj and Venkat all got down from the jeep and started to proceed towards Kalidasa Katta. All the accused came from their opposite directions armed with clubs. They started to assault Anand. Anand raised hue and cry and rushed towards Hanuman temple. Accused chased him and assaulted him once again. Accused No. 1 was armed with axe and gave a blow on the head of Anand by axe. Anand sustained bleeding injuries and fell down. Sharamma rushed to rescue of Anand. Accused Santosh assaulted her by club. In the meanwhile police jeep came to the spot, by seeing the same, all the accused rushed away by throwing the axe and clubs on the spot and they also shifted Anand to the hospital. In the cross-examination, he has deposed that blood had applied to his hands also. He denied the suggestion that on 02.12.2003 he had given further statement to the I.O. stating that in his earlier statement he had implicated Smt. Gandhiyamma and nine others on the say of some others. The said portion of the statement is marked as per Ex. D-6.

Regarding the contradictions in Exs. D-1 to D-6, during the course of cross-examination of the I.O. PW-30 he has deposed that PW-8 Smt. Subamma, PW-4 Sharamma, PW-5 Meera Bai, PW-7 Ganapati, PW-6 Nataraj and PW-27 Sheipu had given further statement before him as per Exs. D1 to D6 respectively. Therefore, the accused were able to establish through the evidence of I.O. that they have given such further statement requesting the I.O. to delete the names of Smt. Gandhiyamma and nine others. They have clearly stated in the further statement that at the say of some other persons they have falsely implicated these 10 persons also in the incident. When this is so, it raises reasonable doubt whether really these witnesses are the eyewitnesses to the incident. If really they are the witnesses and in the light they have clearly seen the incident about who are the assailants, then there would not have been any such confusion to them for implicating the other 10 persons also in the case and requesting the I.O. to delete their names subsequently as per Exs. D-1 to D-6.

All these eyewitnesses whose evidence is referred above have consistently stated that Anand was put into the police jeep and he was taken to the hospital at Bhalki. But looking to the evidence of PW-30 the I.O. during the course of cross-examination, he has stated at para No. 4 of his deposition that the version of witnesses that the injured Anand was carried from the outskirts of Kurub Khelgi village to Bhalki hospital in police jeep is not true. So this evidence of the I.O. on the prosecution side itself is totally contradictory to the evidence of the eyewitnesses that Anand was carried in the police jeep. This is material why because the witnesses have also stated that because of the injuries sustained by Anand blood was soaked even in the jeep also. In that view of the matter, this assumes importance that in which particular vehicle Anand was carried to the hospital. There is totally contradictory version about this. If one is believed, it is going to falsify the other one.

Though it is the claim of the prosecution that because of the injuries sustained by Anand and while he was put into the jeep and he was taken in the jeep, the sari of mother Subbamma and wife of Anand Smt. Meera Bai were also blood stained. These blood stained clothes were not seized by the police. In the evidence of these eyewitnesses it has come on record that at one breadth they have not at all shown the blood stained saris to the police. Even it has come on record that they have not at all told the police about the incident so also they have not given the history before the doctor. This conduct of these witnesses also raises reasonable doubt whether really they were the eyewitnesses to the alleged incident. Looking to the evidence of PW-8 Subbamma, the complainant, she deposed that PW-4 Sharamma was also taken in the jeep on the very same night to Bhalki Hospital, whereas PW-4 Sharamma in her evidence deposed that she stayed in the village itself to look after the children and on the following day at 8.00 am she had been to Bhalki hospital. Looking to these contradictory versions in the evidence of the prosecution witnesses, it will not inspire confidence about the creditworthiness of these alleged eyewitnesses.

Though it is the case that on the very next day police had come to the village at the time of the funeral, the statement of none of the witnesses was recorded and all have consistently deposed that their statement was recorded on 14.10.2003. There is a delay of two days in recording the statement of the alleged eyewitnesses. Looking to the materials on record, the witnesses were very much available to the police, as it is their case that when the Anand was carried in the police jeep, the police was also very much present in the jeep. When that is so, the prosecution has to explain that when the witnesses were very much available, atleast statement of the eyewitnesses could have been recorded at the earliest. The witness PW-30 who deposed in his examination-in-chief itself that on 13.10.2003 at about 11.00 PM on receipt of credible information to the effect that some disturbance has taken place at village Kurub Khelgi, he went to that village and camped at Kurub Khelgi. So even he has stated that he had been to the village on 13.10.2003. Even then, the statement of witnesses was not recorded and it was recorded only on 14.10.2003.

Looking to the evidence of prosecution witnesses, it has come on record from the mouth of complainant herself and other witnesses who claims to be the eyewitnesses to the incident that there are two groups in their village, one is of accused No. 1 Shivappa and another one of CW-7 Vijay Kumar and his father in connection with the panchayat elections. It has also come on record that even earlier to this incident two criminal cases were filed, one against accused No. 1 on the complaint of PW-4 Sharamma alleging that he assaulted her and another criminal case as per the complaint of PW-6 Nataraj against accused Nos. 1 to 3 that they have assaulted him. Looking to these materials on record, admittedly there were criminal cases between the accused and the complainant''s side and there was enmity between the two groups because of the panchayat elections. Considering these aspects of the matter and when the evidence of the eyewitnesses which we have discussed above in detail referring to their evidence deposed before the Court so also the contradictory statements i.e. in Exs. D1 to D6, it raises reasonable doubt whether they are the eyewitnesses to the incident. Therefore, in view of these materials on record, the Trial Court has properly appreciated both oral and documentary evidence and has rightly come to the conclusion that prosecution has failed to establish its case beyond all reasonable doubt. No illegality has been committed by the Trial Court nor there is any perverse or capricious approach taken by the Trial Court in coming to such conclusion. There are no valid and justifiable grounds for this Court to interfere into the judgment and order of acquittal passed by the Trial Court. No merit in the appeal. Accordingly, the appeal is dismissed. Judgment and order of acquittal passed by the Trial Court is hereby confirmed.