LESHAPPA SHIVAPPA ALUR Vs. GANESH

JUDGEMENT

(1.) Crl.A.No.100062/2016 is filed by the de-facto complainant and Crl.A.No.100197/2016 is filed by the State challenging the judgment and order of acquittal dtd. 29/1/2016 passed by the I Additional District and Sessions Judge, Dharwad sitting at Hubballi in S.C.No.151/2010 for the offences punishable under Ss. 143, 147, 148, 323, 324, 504, 307 r/w Sec. 149 of IPC wherein the Sessions Court has acquitted the accused.

(2.) Brief background of the case: A complaint came to be filed by P.W.2 on 5/5/2009 at about 12.30 hours alleging that there is enmity between his family members and the family members of accused No.1-Ganesh and it was in respect of panchayat elections. That on 4/5/2009 at about 9.00 p.m. P.W.4/C.W.4 came to his house and stated that he has parked his truck near Samudaya Bhavan and he will proceed to Hospet. After sometime, he heard the voice of P.W.4/C.W.4 and others and thus, he along with his son Rajesh P.W.5/C.W.8 proceeded near Samudaya Bhavan and found all the accused were in group and they possessed sticks and iron rods and they abused P.W.4/C.W.4 in vulgar language and questioned as to why he did not give way for the tractor of accused No.1-Ganesh and slapped him and assaulted on his face and at that time, the informant P.W.2/C.W.1 and his son P.W.5/C.W.8 tried to pacify the quarrel, all the accused abused in filthy language contending that there was galata during panchayat election and they would be murdered. Saying so, accused Nos.1, 2, 3, 11 and 16 assaulted with sticks and iron rods with an intention to murder them and accused Nos.1 and 2 assaulted on the head of P.W.5/C.W.8 with iron rods and accused Nos.3, 11 and 16 assaulted with sticks on his legs, back, hands etc. When they raised hue and cry, P.Ws.7, 8 and P.W.3 pacified the matter and while going away, the accused left the sticks and iron rods on the spot and the incident has taken place at 9.45 p.m. Thereafter, they came to KIMS Hospital, Hubballi for treatment and injured P.W.5/C.W.8 was shifted to Sushruta Multi Specialty Hospital and Research Centre, Hubballi as he has suffered fatal injuries. The said information came to be registered on 5/5/2009 at 12.30 hours in crime No.110/2009 for the offences punishable under Ss. 143, 147, 148, 323, 324, 504, 307 r/w Sec. 149 of IPC by Hubballi Rural Police Station. During the course of investigation, P.W.5 was subjected to medical check up at KIMS Hospital, Hubballi and thereafter, Sushruta Multi Specialty Hospital and Research Centre, Hubballi. The accused were not arrested in pursuance of grant of anticipatory bail in Crl.Misc.No.264/2009. During the course of investigation, P.W.13-Investigating Officer recorded the statement of the witnesses and on completion of the investigation, charge sheet came to be submitted on 1/8/2009 for the offences punishable under Ss. 143, 147, 148, 323, 324, 504, 307 r/w Sec. 149 of IPC. On committal of the case to the Sessions Court, it was numbered as S.C.No.151/2010. Charges came to be framed on 27/9/2012 and on accused pleaded not guilty and claimed to be tried, trial was commenced. On behalf of the prosecution, 13 witnesses were examined as P.Ws.1 to 13 and got marked 13 documents at Exs.P1 to P13 and M.Os.1 to 5. On incriminating material being suggested, the statement of the accused came to be recorded under Sec. 313 of Cr.P.C. on 9/7/2015. After hearing the detail arguments, learned Session Judge framed the following point for consideration.

(3.) The learned Sessions Judge has held that prosecution has failed to prove the intention of the accused. If the accused had intention to commit murder, they would not have left the spot without committing the murder, more particularly, when the victims were not armed and the accused were armed with deadly weapons. Further, it has recorded that after assault, M.Os.1 to 5 were left on the spot by the accused. Thus, the intention is not proved by the prosecution and essential ingredients of Sec. 307 are not attracted. Apart from this, the doctor has not given his opinion that the injuries were sufficient to cause death. Further, P.W.9 has not specified the period of treatment undergone by P.W.5-Rajesh. Even P.W.5 has not deposed disclosing anything that the hurt sustained by him has endangered his life or that hurt has compelled him to suffer any bodily pain or that he was unable to follow his ordinary pursuits for 20 days. It is further held that, on perusal of the evidence even the scene of offence is also inconsistent. Thus, considering the material on record, the learned Sessions Judge was of the opinion that prosecution has failed to prove the charges against the accused beyond reasonable doubt and the accused are entitled for benefit of doubt. Consequently, accused came to be acquitted. Hence, these appeals.