TMI Blog2004 (8) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... venamed were injured. The charge-sheet had been submitted against nine accused persons namely, Nanagouda (A-1), Appasab (A-2), Rudrappa (A-3), Siddappa (A-4), Ashok (A-5), Rannugouda (A-6), Raju (A-7), Lalsab (A-8) and Shankaragouda (A-9). However A-9 died during the pendency of the trial, but the remaining accused were tried by the IInd Additional Sessions Judge, Bijapur in Sessions Case No. 49 of 1994 charged variously under Sections 148/302/326 and 324 all read with Section 149 IPC. The learned Sessions Judge after an exhaustive scrutiny of the evidence on record came to the conclusion that the case of the prosecution as against A-5, A-7 and A-8 was not established and he, therefore, acquitted them of all the charges levelled against them. He, however, found A-1 and A-2 guilty of the offence under Section 302 IPC and sentenced them to undergo imprisonment for life and to pay a fine of ₹ 500/-, in default to undergo one month's rigorous imprisonment. He found A-6 guilty of the offence under Section 326 IPC and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of ₹ 500/-, in default to undergo one month's rigorous imprisonment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused as well as some of the prosecution witnesses are related to each other. The occurrence took place on November 2, 1993. According to the prosecution, the deceased and his family members as well as the accused were on cordial terms till about 2 weeks before the date of occurrence. 15 days earlier, an occurrence is alleged to have taken place which strained the relationship between the parties. The case of the prosecution is that Srikanth, son of the deceased, had assaulted the younger brother of A-1 when he tried to remove the public tap in village Utnal. According to the prosecution, this provided the motive for the offence. On November 2, 1993 at about 7.00 p.m., according to the prosecution, all the nine accused variously armed with axes, sticks and cycle chains came to the house of the deceased. It is not disputed that A-5 to A-7 do not belong to village Utnal but belong to another village Masabinal. It is alleged that they are related to A-1. When the accused approached the house of the deceased they were noticed by the deceased and his family members. PW-2, Shivabai, wife of the deceased warned her husband as well as her son Irasangappa (PW-16) and the son of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after visited the place of occurrence and took other steps in the course of investigation. The body of the deceased was sent for postmortem examination which was conducted by Dr. Sangappa (PW-30) and the post-mortem report is Ext.P/22. The injured witnesses were examined by PW-29, Dr. Ramappa. On the following morning the statements of the witnesses were recorded by the police in the course of investigation. After investigation PW-46 filed the charge-sheet against the accused who were put up for trial before the IInd Additional Sessions Judge, Bijapur in Sessions Case No. 49 of 1994. The trial court on appreciation of the evidence on record came to the conclusion that the charge under Sections 302/149 was not proved. According to the trial court there was no common object of the assembly, and each of the accused acted on his own. On an analysis of the evidence on record it came to the conclusion that the participation of A-5, A-7 and A-8 was highly doubtful and, therefore, acquitted them of all the charges levelled against them. It held that A-1 and A-2 were the only persons who assaulted the deceased and the injuries caused by them resulted in his death. They were, therefore, g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that A-4, A-5 and A-7 had also assaulted the deceased but it was found that he had not said so in the course of investigation in his statement recorded under Section 161 Cr. P.C . The trial court, therefore, did not accept this part of the evidence of PW-6. PW-4 stated that as many as 5 other accused, apart from A- 1 and A-2 assaulted the deceased and in this connection he involved A-3, A-4, A-6, A-7 and A-8. No other witness had stated so and, therefore, the trial court did not accept this part of his evidence. On the other hand PWs. 3, 5 and 8 deposed that only A-1 and A-2 had actually assaulted the deceased. On the basis of such evidence on record, we do not find any fault with the finding of the trial court that only A-1 and A-2 assaulted the deceased and no other accused assaulted him. So far as the assault on injured witnesses is concerned, the trial court found that PW-2 stated that she had been pushed by A-4 with the blunt portion of the axe. PW-3 alleged that A-3 assaulted him with stick. PW-5 made an allegation of assault against A-4 but he had not made such a statement in the course of investigation under Section 161 Cr. P.C. The trial court, therefore, did not acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse of investigation when his statement was recorded under Section 161 Cr. P.C. So far as PWs. 9 and 10 are concerned, the story that they had been called by A-9 who disclosed to them their intention of assaulting the deceased does not find place in their statements recorded under Section 161 Cr. P.C. as deposed to by the Investigating officer, PW-46. This part of the story was for the first time narrated by them in the course of their deposition. The trial court has considered these discrepancies in the testimony of the above mentioned witnesses. It held that the presence of PW-7 was doubtful because she being the daughter-in-law of PW-2, she would not have omitted her name from the First Information Report when she mentioned the presence of so many other witnesses. In any event, as earlier noticed, PW-7 in her statement recorded in the course of investigation did not mention about exhortation by A-9. For the same reason we find the versions of PW-2, PW-9 and PW-10 not reliable in so far as they relate to the involvement of A-9. Admittedly A-9 did not cause any injury to anyone and the only role ascribed to him was of exhorting his companions to finish the deceased. We find this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The post- mortem on the body of the deceased was conducted by Dr. Sangappa (PW-30). He found the following ante mortem injuries on the deceased:- 1. Abrasion wound on right side of head i.e. behind ear, measuring 4 x 1 inch broad and deep to the bone, lower bone was broken. 2. Lacerated wound on left side of face, chin, 3. Lacerated wound on left side of chest. 4. Abrasion lacerated wound crossed to right side on ribs, measuring 6 x 1 inch. 5. Incised wound on left side below shoulder. 6. Abrasion wound on centre finger of right side hand and on left index finger. 7. His chest, neck leveled, below it air was filled, ribs were broken and wound was in lungs, the hole was found through it air was passing in smooth vessel and spreading on to chest necks. It is called surgical ampixoma. 8. Lacerated wound on right side of chest lower side just outside, one rupees coin type wound was found. According to him there was no injury to the brain nor was death caused by injury No.1 on the head. In his view death was the cumulative effect of the injuries suffered by the deceased. The doctor has not stated any one of the injuries was sufficient in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved by this Court in Pandurang and others vs. State of Haryana : AIR 1955 SC 216 each case must rest on its own facts and the mere similarity of the facts in one case cannot be used to determine a conclusion of fact in another. In the instant case, we find that the alleged motive for the commission of the offence was rather flimsy. Members of the prosecution party as well as the members of the defence party were related to each other and so were most of the witnesses. It is also the consistent case of the prosecution that till 15 days before the occurrence their relationship was cordial. Only two weeks before the occurrence the son of the deceased had assaulted the younger brother of A-1 who had tried to dismantle the public tap in the village. This could hardly provide a motive for committing the murder of the deceased. The grievance, if any, was against the son of the deceased and in any event, even if it is assumed that this may have led to ill will between the parties, it would be too much to infer that for this reason the appellants would have decided to commit the murder of the deceased. The injuries found on the witnesses are simple in nature except the fracture of ribs su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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