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2020 Supreme(Kar) 969
IN THE HIGH COURT OF KARNATAKA AT BENGALURU (KALABURAGI BENCH)
B.A. Patil, Hanchate Sanjeevkumar, JJ.
Mallinath - Appellant
Versus
State Of Karnataka - Respondent
Criminal Appeal No. 3592 of 2012
Decided On : 05-08-2020
Manjula N Tejaswi, Advocate, Mahantesh H Desai, Advocate, Prakash Yeli, Advocate
Headnote:
Indian Penal Code - Sections 143, 148, 307, 324, 504, 149and 302 - Scheduled Castes and Scheduled Tribes Act - Sections 3(1) (x), 3(1) (xi) and 3(2) (v) – Appeal against conviction – Offence of murder – Acquittal of order - Whether charge sheet filed is correct or not - Whether object was in their mind when they came to gather - Whether it occurs to them afterwards is not material - Whether conviction of remaining accused under Section 302 read with Section 149 IPC is legally sustainable - Whether offence committed falls within first part of Section 149 as explained above or it was an offence such as members of assembly knew to be likely to be committed in prosecution of common object and falls within second part - Genesis of case of prosecution are that deceased belongs to scheduled caste - He was cultivating land of PW.3 on crop sharing basis - There was litigation between accused No.1 and said in respect of land where was cultivating land by raising crops along with his wife PW.2 his son PW.1 his daughter PW.4 and laborers were harvesting crop - All of them have harvested crop and took nine bags to house and stored there - They were heaping haystack - At that time all accused came there by holding sticks and rods in their hands by constituting an unlawful assembly and picked up quarrel and abused him by taking name of caste - At that time accused No.1 assaulted on his right hand with iron rod due to which he fell down on ground by raising alarm – Held, Court need not expand on other cited decisions because basic principles remain that important ingredients of an unlawful assembly are number of persons forming it five and their common object - Common object of persons composing that assembly could be formed on spur of moment and does not require prior deliberations - Course of conduct adopted by members of such assembly their behavior before during and after incident and arms carried by them are a few basic and relevant factors to determine common object - On perusal of evidence of PW.2 she has deposed that accused No.3 assaulted her with rod but on perusal of wound certificate of PW.2 which is got marked as Ex.P18 she has suffered only one injury of tenderness and swelling on back and lumber region - Even she has further deposed that accused No.3 has also assaulted PW.10 and PW.6 with spade - But on perusal of wound certificate at Ex.P20 she has suffered tenderness and swelling on back and lumbar region - Even as per evidence of PW.4 she has deposed that accused No.3 assaulted on her back with stick and he has also assaulted her brother’s wife and grandmother - But she has not specifically deposed with regard to assault said to have been committed by other accused persons - PW.5 has also spoken about overt-acts of accused but her evidence is not specific - PW.6 has also deposed that accused No.1 assaulted with rod on right shoulder and leg of deceased - Accused No.2 assaulted with rod on his left shoulder - PW.7 has also deposed about accused Nos.2, 10 and 11 tying up of hands and legs and assault made by accused Nos.2 and 4. PW.8 has deposed with regard to assault made by accused No.2 to PWs.6 and 10 - On perusal of said evidence there is no consistency and connection with evidence and injuries suffered by injured witnesses – Court are conscious of fact that evidence of injured eyewitness stands on a higher footing and presence of injuries assures his testimony as held in catena of decisions of Honble Apex Court – But if said evidence is not consistent and there is no link to assault said to have been committed and injuries suffered with weapon which is said to have been used then entire testimony can be held that such witnesses are deposing falsely to implicate accused – Admittedly civil disputes are pending and evidence of PW.3 owner of land indicates that a case is pending before Civil Judge Aland as against accused No.1 - In that light false implication of accused also cannot be over-ruled - Court are conscious of fact that while appreciation of evidence contradictions inconstancies and exaggerations or embellishments are common phenomenal in case of rustic witnesses – But on perusal of entire testimony if same appears to be a make belief affair then entire evidence has to be discarded - Even the accused persons have also lead the evidence of DWs.1 to 3 and have also produced the records to show that the civil disputes are pending and even accused No.4 had been to Hyderabad along with his wife and was staying in Central University Guest House - Taking into consideration all these aspects court are of opinion that evidence produced does not repose confidence of this Court to hold that accused persons were present at place of incident assaulted injured and caused injures - On contrary it is defense of accused that injured persons have fallen from bullock cart and suffered minor injuries and because of land dispute a false case has been registered - There is some force in said contention - Appeal is allowed
JUDGMENT
B.A.Patil, J. - The present appeal is filed by the appellants/accused Nos.1 to 4, 10, 11 and 13, challenging the judgment of conviction and order of sentence passed by the Special Judge at Gulbarga in Special Case No.189/2010 dated 19.05.2012.
2. We have heard Smt. Manjula N. Tejaswi, learned counsel for the appellants through virtual hearing and Sri Prakash Yeli, learned Additional State Public Prosecutor for the respondent-State.
3. The genesis of the case of the prosecution are that, deceased Husanappa Doddamani belongs to scheduled caste. He was cultivating the land of PW.3- Channabasappa Patil for the last 18 -20 years on crop sharing basis. There was litigation between accused No.1-Mallinath Malage and the said Channabasppa Patil in respect of the land, where the Husanappa was cultivating the land by raising the crops like Toor, Groundnut and Wheat. On 10.01.2010, Husanappa along with his wife Parvati - PW.2, his son Sharanappa- PW.1, his daughter Jyoti - PW.4 and labourers namely, Mallikarjun, Babu Melinkeri, Chandappa Allapur, Sanganabasava were harvesting the toor crop. All of them have harvested the toor crop and took nine bags of toor to the house of Chandappa and stored there. At 3.00 p.m., they were heaping the haystack. At that time, all the accused came there by holding sticks and rods in their hands by constituting an unlawful assembly and picked up quarrel with Husanappa Doddamani and abused him by taking the name of caste. At that time, accused No.1-Mallinath Malage assaulted Husanappa on his right hand with iron rod, due to which he fell down on the ground by raising alarm. Thereafter, accused No.1 has assaulted Husanappa with iron rod on his right leg and caused bleeding injury. Accused No.10-Siddappa Malage, Accused No.11-Vaijinath Malage caught hold the hands of Husanappa and tied with a rope. Accused No.10- Siddappa Malage and accused No.3-Shatappa Malage have caught hold the legs of Husanappa and tied his legs. They have also assaulted Husanappa with iron rod on his back, trunk and caused injuries. When Sharanappa, Parvati, Jyoti, Ashok, Tarabai came and tried to rescue Husanappa, at that time, accused No.4- Shrimanth Malage has assaulted with fist. He assaulted Tarabai with iron rod on her left shoulder. Accused No.2-Dharamaraya Malage assaulted Neelamma, Accused No.5-Jagannath Malage has assaulted with stick on the back and trunk and caused injury. Accused No.12-Rachappa Malage assaulted Jyoti with stick on her back and caused injury. Accused No.13-Neelamma Malage and accused No.14 Mahadev Malage have assaulted Parvati by pushing her down. They have also kicked her. The other accused have instigated to assault Sharanappa, Husanappa and others and to take their lives. One Chandappa, Sanganna, Babu Melinakeri and Arjun Chincholi came and pacified the quarrel. Immediately after the incident, Husanappa was brought in a cart to Challakera village and from Challakera to Gulbarga in a hired jeep and he died when he was taking treatment in the Government Hospital. When Sharanappa was taking treatment in Gulbarga hospital, his statement was recorded by Aland CPI. Based on the statement recorded by CPI, a case has been registered in Crime No.05/2010. After investigation, the investigating officer has filed a charge sheet against the accused for the offences punishable under Sections 143, 148, 307, 324, 504 R/w Section 149 of IPC and also Sections 3(1) (x), 3(1) (xi) and 3(2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as 'SC/ST Act').
4. The Special Judge took the cognizance and secured the presence of the accused and after supplying the copies of charge sheet to the counsel for the accused and after hearing the learned counsel for both the sides, the charge was framed and the contents of the charge read over to the accused. Accused pleaded not guilty and claims to be tried. Therefore, the prosecution witnesses are summoned. The prosecution ha
