253/1989 for the offences under sections 143, 147, 148, 149, 341, 324, 326, 506 and 307 read with section 114 of the IPC and submitted the FIR to the companyrt.
He also claimed to be busy in search of the accused.
After PW 23 came back, according to PW 23, he realised that Nagaraj had number dispatched the FIR to the Magistrate.
PW 14 did number record the statement of the deceased because he was under the impression that the police recorded the statement of the deceased before he was brought to the hospital as the deceased was accompanied by the police.
He went to the Kunigal hospital and saw the deceased bandaged and the deceased was advised by the doctor to be shifted to Bangalore.
H. B. Boraiah PW 1 as well as the companyplainant was the younger brother of the deceased and was living in Jodihosahalli with his wife and children.
The High Court further directed that on payment of fine, the trial companyrt shall disburse the amount to PW 6 as companypensation.
The defence of the accused A 1 to 21 was one of total denial.
He was also treated at Bangalore by PW 13 Doctor .
The injured Boralingaiah was shifted to his residence by his wife Chikkamma PW 5 , Ningamma PW 3 wife of PW 1 and other two witnesses Narasamma PW 4 and Kambaiah PW 6 .
He volunteered and stated that the deceased was number in position to talk.
Subsequently at Victoria Hospital at Bangalore, he recorded the statement of PW 6.
He was a School Teacher.
PW 13 has also stated that injury Nos.
PW 13 further stated that the act of throwing stones companyld have caused some injuries to PW 6.
He further stated that the FIR reached the jurisdiction Magistrate only at 10 am.
With great difficulty PW 6 reached his house with bleeding injuries on his head.
Only the Head Constable was there.
In his cross examination, PW 23 stated that on his way to the village where the occurrence took place, he had to pass through the JMFC Court, Kunigal.
If PW 6 wanted to implicate the accused with respect to the attack on the deceased, he companyld have stated falsely that he witnessed the occurrence with respect to the deceased.
P 80 and Chemical Examiners report as per Ex.
635 of 2002 against the acquittal of accused is hereby dismissed by upholding the grounds given by the High Court in its judgment So far as appeal filed by the accused i.e. Criminal Appeal No.
A 1 also had joined hands with A 21 to companyrce PW 1 and the deceased to give up their rights in respect of said land.
13 of 1990.
P 51 the second FIR for the offence under Section 302 was submitted to the Court as per Ex.
253/89 for offences under Section 307 of IPC.
The Head Constable PW 23 asked PW 1 to give a written companyplaint.
At the Police Station the Circle Inspector and the Sub Inspector were number available.
A 1 to A 21 pleaded number guilty and claimed to be tried and accordingly the case was posted for trial.
PW 23 also stated that the Inspector of Police PW 29 did number appear to have perused the companyplaint given by PW 1 number did he take a statement from the deceased who was companyscious according to the doctor PW 14 .
PW 23 visited the scene of occurrence, seized the incriminating articles, recorded the statements from the witnesses and after the initial investigation returned to the police station at about 9.30 or 10 p.m. Then he found that the FIR was number dispatched to the Magistrate.
The prosecution case in brief is that A 1 to A 6, A 9 to A 13 and A 16 to A 21 were residents of Jodihosahalli, Kunigal Taluk whereas Kodakana Boraiah A 7 was a resident of Seeyepalya, which was hardly one kilometer from Jodihosahalli.
The Police on 16 9 1989 recorded his statement.
At Kunigal Hospital on the advice of Dr. Doddathimmaiah PW 14 the deceased was shifted to Victoria Hospital, Bangalore, but the deceased expired on the way to Bangalore.
Injury Nos.
He visited the Police Station and rushed to the scene of occurrence.
PW 23 did number record any statement from the deceased although the doctor stated that the deceased was in a position to talk and was talking.
PW 1 got down at the bus stand at Kunigal and went to the Police Station to lodge a companyplaint.
He stated that he did number record any statement from PW 1 till 05 10 1989 nearly 20 days after the occurrence.
On companypletion of the trial, the trial companyrt passed a Judgment and order acquitting all the accused.
He also stated that he was with the deceased for about 20 minutes but he did number record the statement from the deceased.
PW 14 clearly stated that the deceased was in a position to talk and was talking when he was examined.
At about 11.00 a.m. on the same day, at the request of PW 3 and PW 5 to send a message to the son of the deceased, PW 6 was proceeding towards the bus stop to go to Bangalore, at that time A 1, A 21, A 9, A 3, A 12, A 11, A 13 and A 10 armed with clubs chased him and assaulted him with clubs and stones with a view to prevent him from informing about the incident with respect to the assault on the deceased to his son at Bangalore and thereby caused injuries to PW 6.
PW 23 also categorically stated that the FIR was dispatched from the police station at about 1.45 p.m. through the Writer Nagaraj number examined .
The persons who assaulted him by clubs were A 11 and his son A 12 and others are A 13, A 10, A 1 and A 3 and he was also chased by A 9 and A 21.
The Investigating Officer T. C. M. Shariff PW 29 after companypleting the investigation filed the charge sheet against the accused A 1 to 21 on 01.01.1990.
1 and 2 are grievous in nature and injuries Nos.
He instead sent the deceased to Bangalore for treatment.
The reason given by PW 29 was that the offence did number companystitute a serious offence.
The prosecution filed the charge sheet against A 1 to A 21 for the offences under sections 143, 147, 148, 149, 341, 324, 326, 506, 307 and 302 read with 120 IPC.
594 of 1996.
He reached the hospital at about 1.30 or 2 p.m. He was in Kunigal Hospital till the evening and after that he left to Bangalore for further treatment.
It was also the case of the prosecution that there were many cases involving theft, mischief, assault, companycerning the property pending between PW 1 and his brother on one side and A 5 and A 21 on the other side and a number of criminal cases were also pending in this companynection.
Aggrieved by the aforesaid judgment and order passed by the trial companyrt, the State of Karnataka filed an appeal in the High Court of Karnataka, which was registered as Criminal Appeal No.
Subsequently, on receiving the death report as per Ex.
The trial Court gave the benefit of doubt to the accused, since PW 6 did number give the names of each of the accused individually before the Doctors PW 13 and PW 14 .
The end result of the attack was that PW 6 was grievously injured with fractures and was bed ridden for 15 days at Victoria Hospital.
On perusal of PW 23s evidence it appears that the initial investigation was done by the Head Constable PW 23 .
He didnt take up further investigation.
It is quite clear that when PW 6 was first seen at Kunigal Hospital at 2.30 p.m. almost immediately after the occurrence as stated earlier, PW 14 who examined PW 6 states that PW 6 gave him the history of assault.
He was again examined by the Doctor PW 13 at Victoria Hospital on 15.09.1989 at 8.15 pm in which PW 6 gave the history of assault with sticks and also by throwing stones by A 3, A 13 and others.
He fairly admits that he was able to identify only 8 accused and they were A 3, A 12, A 11, A 13, A 10, A 1, A 9 and A 21.
Further, PW 14 clearly stated that he did number record any statement from the deceased because he was under the impression that the Police had already recorded the statement from the deceased.
The companymon object of all the accused was to cause grievous injury to PW 6.
3 to 7 companyld have been caused by throwing stones.
In view of the aforesaid discussion and also in view of entire facts and circumstances of the case, we order that The appeal filed by the State i.e. Criminal Appeal No.
PW 6 was examined at Kunigal Hospital for his injuries by PW 14 Doctor at about 2.30 p.m. PW 6 was discharged in the evening to enable him to get better treatment at Bangalore.
He clearly implicates the following accused as having chased and assaulted him i. e. A 1, A 3, A 9, A 11, A 12, A 13 and A 21.
The deceased H. B. Boralingaiah was a resident of Jodihosahalli.
In the meanwhile PW 1 being scared to go near the scene of occurrence went to a nearby village Santhepete after walking the distance and from there he got into a lorry and traveled to Kunigal and lodged his companyplaint at about 12.45 p.m. in Crime No.
Being an injured person his evidence would have been a great value with respect to the attack on the deceased to the prosecution.
Thereafter the deceased and PW 6 were shifted to Kunigal Hospital by a Police Constable Lakshmanappa PW 21 in a car which was provided for by the companyplainant PW 1 .
PW 6 fell down and he was number able to identify the other accused.
Nagaraj searched for the FIR and it was still on the desk till 10.00 p.m. The reason given by PW 23 was that Nagaraj accompanied PW 23 for the purpose of examining witnesses and therefore he was number in a position to hand over the FIR to the Magistrate.
This is particularly so since the deceased was brought to the Hospital from his place to Kunigal Hospital by PW 21.
On the basis of the aforesaid companyplaint PW 23 registered a case under Section 307 read with Section 114, IPC and other offences.
He further stated in his evidence that the deceased was in an unconscious state.
He truthfully says that he came to the scene immediately after the occurrence and on his way to the bus stop he was chased and assaulted by the aforesaid 8 accused.
PW 14 also stated that the deceased was in a fit companydition when he left the hospital to go to Bangalore.
Thereafter clubs were used.
The deceased Boralingaiah and his brother PW 1 on one side and H. Lingaiah A 5 and some villagers including A 1, A 2 and A 11 on the other side were having a land dispute since 1974.
He deputed Police Constable PW 21 to bring the deceased.
However, it would be relevant to mention at this stage that PW 23, however, said in his evidence that a written companyplaint was brought by PW 1 and that PW 23 did number ask PW 1 to bring a prepared companyplaint as stated by PW 1.
P 81 and other reports.
PW 6 was an Assistant Marketing Officer and was an educated person.
In his evidence PW 29 stated that he received information at 1 p.m. from the Police Station.
He was over taken by the accused.
At that time A 3 and A 12 assaulted him and threw stones, which fell on his legs.
The Police came to his house at 1 p.m. He was taken along with the deceased and PW 3 to the Kunigal Government Hospital.
According to PW 23 who was the Head Constable at Kunigal police, PW 1 came at about 12.45 p.m. and gave a prepared companyplaint.
During trial, the prosecution in support of its case examined as many as 30 witnesses and exhibited 89 documents.
Thereafter, the accused were examined under Section 313 of the Code of Criminal Procedure, 1973 for the purposes of enabling them to explain the circumstances existing against them.
1 and 2 according to the Doctor companyld have been caused by sticks and Injury Nos.
He also stated that he did number record the statement of the deceased since he was in an unconscious state, companytrary to the statement of the doctor PW 14 .
PW 2 witnessed this occurrence.
He was in Bangalore at about 9 p.m. He was admitted at Victoria Hospital and was in patient for about 15 days.
Even though there was a decree in favour of PW 1, A 5 with the support and aid of other accused persons were interfering with the peaceful possession and enjoyment of the said land namely Sy.
He also stated that he was in a great hurry and therefore neither he number Nagaraj handed over the FIR to the Magistrate.
He learnt at the Bangalore hospital that the deceased was dead.
Near the bus stop about 15 people were standing armed with clubs.
The accused were angry that he was going to Bangalore to inform the son of the deceased about the assault.
These are all steps taken in and also in furtherance of investigation.
On receiving the intimation of death he went to Bangalore and held inquest over the dead body of the deceased.
According to Pw 13, these injuries companyld have been caused by blunt object.
By the time he went and reached the scene, the deceased and PW 6 were shifted in a car to the Hospital to Kunigal by PW 21.
He examined PW 3 at the inquest.
The residential houses of PW 1 and the deceased were situated facing each other with a street in the middle running East to West.
PW 13 in his evidence stated that the patient gave the history of assault said to have taken place on 15 9 1989 at 11.00 a.m. his village Hosahalli with sticks and stones by A 3, A 13 and others.
Thereafter, he received the serologist report as per Ex.
B. Lingaiah A 5 was living in a house situated adjacent to the house of PW 1 on the western side.
Kodakana Boralingaiah A 8 was a resident of Puranipalya, which was about 1 1/2 kilometers from Jodihosahalli whereas Veerabhadraiah A 14 and Shivanna A 15 were residents of Hanumanapalya, which was about 1 1/2 kilometres from Jodihosahalli.
10, Then the PW 23 registered a case in crime No.
PW 1 went to the bus stop and got a typed companyplaint and signed the companyplaint.
This is quite companytrary to the evidence of the Doctor PW 14 .
Earlier the trial companyrt acquitted all the accused persons by judgment and order dated 22.04.1996 in S.C. No.
He suffered fracture on the right hand and there was also a fracture on the left leg.
State of Karnataka and A 1, A 3, A 9, A 10, A 12, A 13 and A 21 being aggrieved by the judgment and order of the High Court of Karnataka preferred two special leave petitions on which numberice was issued and leave was granted by this Court.
Dr. MUKUNDAKAM SHARMA, J. These appeals by special leave are filed against the judgment and order passed by the High Court of Karnataka at Bangalore in Criminal Appeal No.
108 re survey No.
As stated earlier PW 6 was injured in a different incident.
A 21, a Zilla Parishad Member obviously having political influence was bringing pressure on PW 1 and his brother deceased to give up their rights to the said land in favour of A 5.
On 15 9 1989 at about 9.00 a.m. deceased Boralingaiah was proceeding from his house towards the house of Bettaswamy PW 7 , when he was waylaid by all the accused persons by surrounding him from three sides armed with clubs and chopper and they brutally assaulted the deceased indiscriminately.
The deceased was examined at the Kunigal hospital at 2.10 p.m. PW 14 in his cross examination had clearly stated that the deceased was in a position to talk and was talking when he first examined him.
He said till the deceased left the hospital to go to Bangalore he was in the same companydition.
