Judgment:
(Prayer: This Criminal Appeal is filed U/S 374(2) Cr.P.C by the Advocate for the Appellants seeking to call for the records of the Court below and allow this Appeal by setting aside the Judgment and Order Date 30.09.2009 passed by the Special (District) Judge Bagalkot in Spl.Case No.43/2009 and acquit the Appellants.)
1. The appellants, who are aggrieved by the judgment dated 30.09.2009 passed by the Special District and Sessions Judge (Special Judge), Bagalkot, in Spl. Case No.43/2009, have preferred this appeal challenging the above said judgment on various grounds.
2. Under the impugned judgment, the trial Court has convicted the appellants (hereinafter referred to as 'the accused') for the offences punishable under Sections 143, 147, 148, 341 and 324 r/w. 149 of IPC and sentenced them to undergo various punishments ranging from 15 days to 2 (two) years and also ordered to pay fine ranging from Rs.200/- to Rs.1,500/-.
3. The brief factual matrix of the case that emanate from the records are that, on 09.02.2009 at about 9.00 a.m., in Kataraki Village, Bilagi Taluk, Bagalkot District, the accused persons formed into an unlawful assembly holding deadly weapons like stone, club, etc., attacked the complainant:PW.1-Somappa Ramappa Malagi and attempted to kill him. At that time, PW.1 ran towards the land of one Moulasab in Sy.No.138/1. But the accused persons chased PW.1 and assaulted him with clubs and stones on his face, chest, shoulders, back, etc. and attempted to commit his murder. It is also further alleged that PW.1 and his family members belonged to Scheduled Caste ( Valmiki Community) and knowing fully well that PW.1 and his family members are belonged to Scheduled Caste, with an intention to insult them, the accused persons have also abused PW.1 in filthy language touching his caste by saying that he is belonged to 'Beda Community' etc. and thereby they have all committed offences punishable under Sections 143, 147, 148, 341, 324, 307, 504 r/w. 149 of IPC and also under Sections 3(1)(x) and 3(2)(v) of SC and ST (PA) Act (for short, 'SC and ST Act').
4. On the above said allegations, the police have investigated the matter and submitted a report before the trial Court. The accused Nos. 1, 3, 4 and 5 were arrested in connection with the said case on 16.02.2009 and Accused No.2 was arrested on 11.03.2009 and they were all released on bail subsequently. After appearance of the accused persons, the learned Sessions Judge has framed charges for the above said offences and plea of the accused persons were recorded. As the accused pleaded not guilty and claimed to be tried, the case was set-down for trial.
5. The prosecution in order to bring home the guilt of the accused, examined as many as 11 witnesses viz., PW.1 to PW.11 and got marked Exs. P1 to P9(a) and 4 material objections viz., MOs. 1 to 4. After the prosecution evidence is over, the accused were also examined by the Court under Section 313 of Cr.PC. and their statements were recorded. The accused persons did not chose to lead any evidence, as such, the court heard the arguments of the advocates on both sides in detail and came to the conclusion that the prosecution has proved the case against the accused beyond reasonable doubt and accordingly, convicted and sentenced the accused persons for the offences noted supra. However, the accused persons were acquitted of the offences punishable under Section 307 of IPC and also under Section 3(1)(x) and 3(2)(v) of SC and SC Act.
6. Learned counsel for the appellants strenuously argued before the Court submitting that, though the prosecution has not proved the case beyond reasonable doubt, the trial Court mainly relying upon the interested testimony of the relatives and friends of PW.1, wrongly recorded the judgment of conviction and order of sentence against the accused persons. It is further contended that there is long delay of 20 hours in lodging the complaint, which created serious doubt, but the court has not properly accepted and appreciated this particular aspect. It is also contended that the trial Court has not appreciated the evidence of the prosecution witnesses in the light of human probabilities and there is lot of inconsistencies and contradictions even in the evidence of interested witnesses. Therefore, the judgment of the trial Court is liable to be set aside. Learned counsel also argued before this Court that the timings with regard to occurrence of incident and also with regard to the topography of the place of incident and non-seizure of blood-stained clothes at the instance of PW.1, which are actually fatal to the prosecution case have not been properly considered and appreciated by the trial Court. Therefore, he contends that the judgment of the trial Court suffers from serious incurable defects and as such, the accused persons are entitled for the benefit of such infirmities and they are entitled to be acquitted of the alleged offences, on the above said grounds.
7. Per contra, Smt. Veena Hegde, the learned HCGP has supported the case of the prosecution and the judgment of the trial Court. She contends that the trial Court in fact has considered all the grounds which are raised before it in detail with reference to the evidence available on record. Therefore, there is absolutely no room to interfere with the judgment and sentence of the trial Court and she prays the court for dismissal of the appeal.
8. On re-evaluation of the entire oral and documentary evidence on record with reference to the submissions made by the learned counsel for the appellants, the points that would arise for consideration of this court are,-
i) Whether the appellants have made-out any reasonable or substantial ground to interfere with the judgment of conviction and sentence passed by the trial Court?
ii) What order?
9. In order to answer the above points, it is just and necessary to have the evidence adduced by the parties before the trial Court in brief. Of course, as rightly contended by the learned counsel for the appellants, the witnesses examined are inter-related and friends of PW.1. Therefore, it is just and necessary to have the brief cursory consideration of the evidence of these witnesses.
10. PW.1-Somappa Ramappa Malagi is the injured. He has given the details of the incident and also on his lodging complaint, investigation had been conducted by the police; PW.2-Ramappa Siddappa Malagi is father of PW.1; PW.3-Maleppa Ramappa Arakeri, PW.4- Erappa Mallappa Jeeragala, PW.5- Shankreppa Venkappa Jeeragala are the eyewitness to the incident. But, they turned hostile to the prosecution and there is no need to discuss the evidence of these witnesses for the reason that they have not even supported the prosecution case in any manner; PW.6-Muttappa Channappa Katani is the scribe of Ex.P1 (FIR). Though he has supported the case of the prosecution, but, no much evidence is available either to support or to discard the prosecution case; PW.7-Dr. Jayashree Yemmi has deposed before the Court with regard to the to examination of the injured and about the injuries found on the body of the injured; PW.8-Rangawwa Ramappa Mali is none other than the mother of PW.1. PWs. 2 and 8 have deposed in similar manner that, after hearing the voice of their son, they went to the spot and saw the incident. They have also implicated the accused persons in a vivid manner; PW.9-Fakirappa Ramappa Bisanala is the panch to Ex.P7, which is the spot panchanama drawn in presence of the panch-witnesses, wherein the police have recovered one stone and three clubs from the spot, which are marked at Mos. 1 to 4. There is no much cross-examination sofar as this aspect is concerned; PW.10-Rudragowda is the person who registered the case on the complaint being lodged by PW.1 on 10.02.2009 at about 4.00 p.m. in Cr. No.13/2009 and forwarded the FIR to the Magistrate and also sent the injured to the hospital, and also there is no much cross- examination sofar as this witness is concerned. PW.11- Rajashekara is the investigating Officer, who recorded the statements of the witnesses, completed the investigation and laid the charge sheet against the accused persons.
11. Looking to the above brief evidence of the prosecution witnesses, the evidence of PW.1, PW.2, 7 and PW.8 is the crux of the case of the prosecution cited by them. Of course, PW.1, PW.2 and PW.8 are the related witnesses. PW.6 is also a friend of PW.1, PW.7 is the Doctor. The evidence of these witnesses have to be meticulously considered by this Court in view of the hostility of PWs. 3 to 5.
12. It is the basic fundamental principle of law that merely because the witnesses are relatives or friends of the injured, they cannot be dubbed as interested witnesses, unless there is substantial material available in the record. The court has to look into the surrounding circumstances, nature of the evidence given before the court by the witnesses and their veracity in order to accept or reject the evidence of the related witnesses. Therefore, it becomes necessary for the Court to very carefully scan the evidence of such witnesses before drawing any inference with regard to complicity of the accused persons into the crime. The trial Court, in fact on going through the judgment, has meticulously considered the evidence of the witnesses has drawn an inference that, though they are related witnesses, particularly PW.1 is the injured and PWs. 2 and 8 are the father and mother of PW.1, therefore, there is no reason for them to falsely implicate the accused person. Considering the evidence of the Doctor coupled with the evidence of PW.1, who sustained 21 injuries in the alleged incident, the court has come to the conclusion that their evidence can be relied upon and as such, the court has convicted the accused persons.
13. In this background, now let me re-appreciate the evidence of these witnesses. Of course, PW.1 is the prime witness, who has categorically stated about each and every circumstance in this regard. Of course, PWs. 2, 7 and 8 have also supported the evidence of PW.1 and corroborated the evidence of PW.1.
14. PW.1 has in fact deposed that they belonged to Valmiki Community. Accused Nos. 1 and 2 are the full- blood brothers to each other. Accused No.3-Ashok Jambagi is the cousin brother of Accused Nos. 1 and 2. Accused No.4-Siddappa Hanji and Accused No.5-Ramappa Hanji are also brothers and they are the supports of Accused Nos.1 to 3 and also they are neighbour land owners of Accused No.1. PW.1 says that he does not know the caste of Accused Nos. 1 to 5. He further stated that there was some quarrel in between the accused persons and PW.1 and his family members because of the reason that the accused persons were leaving their cattle and horse to the land of PW.1 in the night hours for the purpose of grazing and this was objected by PWs. 1, 2 and 8, therefore, the accused persons had a grinding axe against PW.1 and his family members. In the above said backdrop, it is deposed by PW.1 that, on the date of the incident between 8.30 p.m. and 9.00 p.m., as the Accused No.1 has left his horse to the land of PW.1, PW.1 has told Accused No.1 not to leave his horse to his land to graze, otherwise, he would tie the horse in his land. At that time, Accused No.1-Shekappa Jambagi has abused and also attempted to assault PW.1. In fact in order to escape from his clutches, PW.1 went on his cycle and came to near the land of one Moulasab. At that time, all the accused persons along with some other persons, came there and wrongfully restrained PW.1 and assaulted him with clubs, stones and cycle chain. PW.1 has sustained injuries and he had screamed for help. On hearing the screaming voice of PW.1, PWs. 2 and 8 came to the spot and tried to rescue their son. At that time, Ashok Yankappa Jambagi (A3) assaulted the father (PW.2) of PW.1. Thereafter, though the accused persons went away, but they again intercepted the way of PWs. 1, 2 and 8 when they were proceeding towards their relative's house and once again they assaulted them. Thereafter, PWs. 1, 2 and 8 went to Arkeri as it was late night, in the morning they discussed with the senior members in the village and thereafter they went to the Police Station and lodged a complaint at about 4.30 pm.
15. PWs. 2 and 8 have also in fact reiterated the above said aspects that after hearing the screaming of their son, they went to the spot and saw the accused persons assaulting the injured (PW.1) and they specifically stated about the presence of Accused Nos.1 to 5 at the spot of incident along with some other persons. But, it is specifically stated that the accused persons have actually assaulted PW.1. PW.6-Muttappa has also stated that on the next date of the incident he came to know about the incident and PW.1 has described each and every thing to him and he drafted the complaint as per the instructions of PW.1. He identified the same as per Ex.P1 and his signature at Ex.P1(b). Looking to the above facts and circumstances of the case, in the examination-in-chief there is nothing to disbelieve the evidence of these witnesses, though they are related witnesses.
16. Now let me consider the arguments of the learned counsel with respect to the interestedness, whether anything is elicited in the course of cross- examination to discard the evidence of the above witnesses. Sofar as the delay in lodging the complaint is concerned, in the course of cross-examination of PW.1, he has categorically stated that, particularly on the date of the incident, after the incident they went to Arkeri Village in the night and in the morning, he took his father-in-law to the house of one Gowda and the said Gowda told them to lodge a complaint and thereafter, they went to Police Station and lodged a complaint at 4.30 p.m.on 10.02.2009. In the course of cross-examination of PW.1, sofar as this aspect is concerned, nothing much has been elicited, but he has stated that after half an hour of the incident, ie., at about 9.30 p.m., he went to his house. It is not elicited that whether he had been to his house or to the house of his father-in-law. But, in the next sentence it is elicited that, when the complainant and his father and mother were proceeding towards his father-in-law's house, again the accused persons at a distance of half a kilometer, once again came and attacked them. This clearly discloses that though there is some discrepancy in explaining the delay, but on over all consideration of the evidence, it is clear that on the date of incident in question, he had been to the house of his father-in-law and on the next day, a complaint has been lodged at about 4.30 p.m. Though there is some discrepancy in mentioning the time with regard to lodging of complaint, at one breath PW.1 states that at 2.30 to 3.00 pm. they went to Police Station and in another breath he states that, at 3.30 pm to 4.30 p.m. they had been to the Police Station. The minor discrepancy with regard to the mentioning of time is not sufficient to totally discard that there was deliberate intention to cause delay in lodging the complaint. It is not that intentionally the accused persons have been implicated into the crime. It is not the case of the accused that some other persons have committed the alleged offences. It is not the case of the accused also that they have been falsely implicated into the crime, though the assault on PW.1 was made by some other persons. The trial Court has also considered this particular aspect at Paragraph-17 of its judgment in detail.
17. It is the further contention of the learned counsel as noted above that, the topography of the place of incident has not been properly appreciated by the trial Court. It is contended that the incident happened in the land of one Moulasab. In the course of cross-examination, it is suggested that in the said land, there was some sugarcane crop. It was also admitted by the witnesses that if anybody scream for help, that may not be audible, if there is any sugarcane crop exists in the lands in between the place of incident and the house of the complainant. But, if the cross-examination is meticulously observed, it is specifically suggested that the sugarcane crop was already cut and removed and after cutting, the small roots and stem were remaining. It is also suggested that on that date of incident, the complainant was in drunken status and he fell on those small portion of cut sugarcane which were sharp in nature and as such, he sustained the alleged injuries. But, nowhere it is elicited in the course of cross- examination of these witnesses that there exists sugarcane crop in between the place of incident and the house of the complainant in order to draw an inference that PW.2 and PW.8 could not have heard the screaming voice of PW.1. Even on careful perusal of the spot- panchanama (Ex.P7), it does not disclose the existence of cut and removed sugarcane crop. Therefore, the said argument of the learned counsel that, the trial Court has not properly appreciated this aspect, cannot be believed.
18. Further, as argued by the learned counsel that the trial Court has not properly appreciated the injuries sustained by PW.1. According to the accused, the Doctor has stated that some of the injuries could be caused if a person falls on the cut stems of sugarcane crop. But, as could be seen from the evidence of the Doctor, in the course of cross-examination, it is elicited that the injuries which were found on the person of PW.1 could not be caused if a person falls on the cut portion of the sugarcane stems. but, she has stated that Injury Nos.16, 17 and 18 might be caused, in such circumstances. As could be seen from the evidence of the Doctor (PW.7), it is stated by her that on 10.02.2009 she examined the complainant (PW.1) at 5.15 p.m. and found as many as 21 injuries on his body. In the course of examination-in-chief, she has categorically stated that those injuries could be caused by assaulting a person with clubs and stones. Therefore, looking to the above said evidence, even it is considered that injury Nos. 16, 17 and 18 could be caused if a person falls on the cut stems of sugarcane, but there is no explanation by the accused persons as to how this complainant has suffered other injuries. More over, it is not explained as to how the accused persons came to know about the injuries sustained by the complainant. The fact remains that the accused persons were having knowledge of the injuries sustained by PW.1. In the absence of any explanation, there is no reason to disbelieve the version of injured person. The argument of the learned counsel is that the blood-stained clothes were not recovered. Of course there is some lapse on the part of the Investigating Agency in not recovering the blood- stained clothes of PW.1. But that itself is not sufficient to throw-out the case of the prosecution. The complainant (PW.1), PW.2 and PW.8 do not know the procedure of the police and also they may not be knowing that the blood- stained clothes have to be handed over to the police. But, it is in the evidence of PWs. 2 and 8 that, after the incident, the clothes worn by PW.1 were washed. Perhaps that could be reason the police might not have seized the said clothes. In my opinion, that itself cannot be a fatal circumstance to disbelieve the version of the prosecution.
19. On over all consideration of the evidence of PWs.1, 2 and 8, the trial Court after meticulously considering the evidence in detail, has drawn a correct finding that the accused persons are responsible for the injuries sustained by PW.1 and the Court has believed the incident and convicted the accused persons.
20. Of course, as I have already stated, there are some discrepancies and contradictions in the evidence of three witnesses viz., PWs.1, 2 and 8, with reference to the time of incident, ie., time at which they gone to the Police Station and also with regard to non-seizure of the blood- stained clothes and also the existence of previous quarrel between the parties. If the nature of contradictions and inconsistencies elicited are accepted, they should go to the root of the prosecution case and destroy the entire case. Otherwise, mere inconsistencies are not sufficient to discard the evidence of the prosecution witnesses, when particularly PWs. 1 and 2 are the injured persons. It is a well known recognized principle of criminal jurisprudence that the conduct and presentation of the facts by the witnesses and the parties varies from person to person and it can not be said that the reaction of every person should be in similar manner. Each and every person would give his own set of reaction and each and every person would narrate the incident in his own manner. Therefore, the conduct of each person in narrating the incident cannot be dubbed that because of the interestedness, they have deposed in such a manner. Though the witnesses narrate the incident in different manner, if the core of the prosecution case is depicted in the evidence, then such evidence cannot be easily brushed aside. It is also to be noted that the court should not give over importance to the omissions, contradictions and minor discrepancies, which do not go to the root of the matter, unless it shakes the basic version of the prosecution. Of course, the witnesses in certain circumstances, may depose wholly truth or with some discrepancies because of the environment in which they were developed and overwhelmed by the court atmosphere and due to confusion and rustic nature they may mix-up the facts and get confused regarding sequence of events and also to certain extent fill-up the gap by means of imagination. All these things bound to occur, if more than one person have witnessed same incident.
21. Looking to the nature of the evidence given by the witnesses and their educational qualification being the rustic villagers and they are not worried about the consequences of their deposition before the court and in such an eventuality, the core of the evidence of the witnesses has to be taken into consideration. Therefore, I am of the opinion that on over all re-appreciation and re- analysis of the evidence on record, I do not find any strong reason to deviate myself from the opinion expressed by the learned Sessions Judge. Hence, the judgment of conviction passed by the trial Court deserves to be confirmed.
22. The trial Court has sentenced the accused persons as under:-
i) To undergo SI for 6 months for the offence 143 IPC and to pay fine of Rs.500/- and in default to pay fine, to undergo SI for 1 month;
ii) To undergo SI for 1 year and to pay fine of Rs.1,000/- with default sentence of 2 months' SI for the offence under Section 147 of IPC;
iii) To undergo 2 years' SI and to pay fine of Rs.1,500/- fine with default sentence of SI for 3 months' under Section 148 of IPC;
iv) To undergo 15 days SI and to pay fine of Rs.200/- with default sentence of 15 days' SI, for the offence under Section 341 of IPC;
v) To undergo 2 years' SI with fine of Rs.1,500/- with default sentence of 3 months' SI for the offence under Section 324 of IPC.
23. Looking to the surrounding circumstances of the case it is clear that the appellants and the respondents are belonging to the same village and they are neighbourers and as such, every day, they have to face each other and they have to pull on their life in the same village for their remaining life. Therefore, looking to the age of the accused persons and also they being the agriculturists, it appears imposition of such punishment is too harsh. Therefore, in my opinion, considering the injuries sustained by PW.1 and the imprisonment already undergone during the investigation and trial, the sentence passed by the trial Court deserves to be modified.
24. If on reducing the imprisonment imposed under Sections 143, 147, 148, 341 and 324 of IPC to the extent of three months and also impose little more fine, it would meet the ends of justice. Therefore, sofar as order of sentence is concerned, it requires to be modified.
25. In view of the above, the following order is passed:-
ORDER
The appeal is partly allowed. The judgment of conviction passed by the trial Court for the offences punishable under Sections 143, 147, 148, 341 and 324 r/w 149 of IPC is hereby confirmed. The order of sentence is modified to the following extent:-
i) Each of the appellants/accused shall undergo SI for a period of three months for the offence punishable under Section 143 of IPC and to pay fine of Rs.1,000/- and in default to pay fine, they shall undergo SI for a further period of 15 days;
ii) For the offence under Section 147 of IPC, each the appellants shall to undergo SI for 3 months and to pay fine of Rs.2,000/- and in default to pay fine, they shall undergo SI for 15 days;
iii) For the offence under Section 148 of IPC, each of the appellants shall undergo SI for 3 months and to pay fine of Rs.3,000/- and in default to pay fine, they shall undergo SI for a period of 1 month;
iv) For the offence under Section 341 of IPC, each of the appellants shall undergo SI for a period of 15 days and to pay fine of Rs.500/- and in default pay fine, they shall undergo SI for seven days;
v) For the offence under Section 324 of IPC, each of the appellants shall undergo SI for 3 months and to pay fine of Rs.3,000/- and in default to pay fine, they shall undergo SI for one month.
The sentence of imprisonment shall run concurrently and however, the sentence of fine shall run consecutively. If the fine amount is deposited by the accused persons, out of the fine amount, an amount of Rs.2,000/- shall be confiscated towards the litigation expenses to the State and the remaining fine amount shall be paid to PW.1-Somappa Ramappa Malagi, as compensation.