1. In this appeal by the State, the order of acquittal dated 28/29th August, 1979, passed by the Additional Sessions Judge, Bijapur, in Sessions Case No. 16 of 1979 acquitting the respondents who were the accused therein, of having committed the offence punishable under Section 302, I.P.C. is challenged.
2. The Additional Sessions Judge has convicted the respondents-accused of having committed the offences punishable under Section 326 read with Section 34 I.P.C. and sentenced each of them to undergo rigorous imprisonment for 5 years and under Section 447 I.P.C., and sentenced each of them to undergo simple imprisonment for 3 months and thereafter proceeded to apply the provisions of Section 360 of the Criminal Procedure Code and release them on probation of good conduct.
3. The undisputed facts are that P.W. 14 Maninabappa is the father of the deceased Siddappa. P.W. 9 Lakkavva is the mother of the deceased Siddappa. P.W. 10 Nagappa is the son-in-law of P.Ws. 14 and 9. P.W. 14 owned land bearing S. No. 76/1 of Muttur Village situated about 13 miles from the jurisdictional police station, Banahatti. Out of this land, he had given a strip of one acre to the deceased for cultivating. For the year 1978-79 sugarcane and chill's had been grown on the land. P.W. 14, as admitted by him, had borrowed Rs. 1,500/- from A-1 and had put A-1 in possession of the land agreeing to the term that A-1 should cultivate the land and enjoy the usufruct for three years. Such an agreement had been made to get over the provisions of the Karnataka Land Reforms Act. A-1 was in fact in possession and had cultivated the land. A-2 is the brother of A-1. A-3 is the son of A-1. A-4 is the servant of A-1 to A-3. They had planted chill's also. The crop was ripe for harvesting by 29-10-1978.
4. The prosecution case is that on 28-10-1978, a quarrel took place between A-3 and P.W. 14 as A-3 demanded money beck from P.W. 14 and by 29-10-1978 P.W. 14 was admitted in a hospital in Jamakhandi, but not because of the quarrel. By about 11-00 a.m. on 29-10-1978. P.W. 9 went to the land and sat in front of a small hut erected there. A-1 to A-4 went there. A-1 had a sickle and A-2 to A-4 had sticks. They started cutting the sugarcane crop. She objected to it. She was assaulted and according to her, she fell down unconscious and she was semi-conscious when she was transported from Muttur to Jamakhandi Hospital in a tractor. Her son Siddappa the deceased also came there and objected to the harvesting of the crop by the accused and the accused assaulted him and he sustained serious injuries. In the meanwhile P.W. 10 came and saw the assault on the deceased by the accused. A blow was dealt on him and that blow caused a minor abrasion. He went to Jamakhandi and informed about the incident to P.W. 14. P.W. 14 told him that he would return to the land, go over there and take suitable action. By that time P.W. 9 had been taken to P.W. 2 Dr. Gurupadappa, Medical Officer in Government Hospital Jamakhandi, by one Dundappa for treatment. Dead body of Siddappa who had died on the way from Muttur to Jamakhandi was also produced in the Hospital and the Medical Officer rang up the Police Station at Jamakhandi. P.W. 19 Shri Dattatraya, A.S.I. received the phone call and learnt that a person who had sustained injuries had died and his presence was required in the Hospital. He went there just after 4-00 p.m. It was at 4-00 p.m. he had received the phone call. He found P.W. 9 having sustained injuries and being treated there. He recorded her information as per Ext. P. 14 and registered a case in Crime No. 204 of 1978. He issued F.I.R. Ext. P. 21. He held inquest over the dead body and recorded the statements of P.Ws. 9 to 11. By that time, P.W. 10 had also appeared in the Hospital and he was examined by P.W. 2. P.W. 2 issued wound certificates Exhibit P4 in regard to P.W. 9 and Exhibit P6 in regard to P.W. 10. By 6-00 p.m. investigation was taken up by P.W. 21 Shri Yallanagouda, Circle Inspector of Police, and he recorded the statements of P.Ws. 12 and 13 and the additional statement of P.W. 11 on that day. The accused were not to be found in the village. They were subsequently arrested and recovery of some weapons was attributed to them.
5. The fact that Siddappa had sustained injuries and had died because of the injuries sustained by him has remained undisputed and in our opinion cannot be disputed at all in view of the evidence given by P.W. 1 Dr. Gurupadappa, who had conducted the post-mortem examination over the dead body of Siddappa.
6. Now the question is whether the incident had taken place as narrated by P.Ws. 9 and 10. The prosecution has examined P.W. 11, P.W. 12 and P.W. 13 also as eye witnesses. They have not supported the prosecution. Therefore, the only evidence of P.Ws. 9 and 10 and the circumstance regarding the recovery of weapons remains in favour of the prosecution.
7. The circumstance regarding the recovery of the weapons after the arrest of the accused persons recedes to the background because no bloodstains particularly of human origin have been found on any of the weapons. Hence the whole case of the prosecution rests on the evidence of P.Ws. 9 and 10.
8. The learned Additional Sessions Judge has disbelieved the evidence of P.W. 14 in to and has acted on the evidence of P.Ws. 9 and 10. He has held that the accused had criminally trespassed into the land of P.Ws. 14 and 9 and had assaulted P.W. 9 and the deceased and therefore were guilty of having committed the offences as already narrated.
9. Shri A. B. Patil, learned Advocate appearing on behalf of the respondents accused, urged that as the State has filed this appeal against the order of acquittal and in that process has asked for enhancement of the sentence by challenging the order passed by the Additional Sessions Judge under Section 360 of the Criminal Procedure Code, the respondents-accused have a right to contend that they are entitled to be acquitted in view of the legal position in Section 377(3) of the Criminal Procedure Code. He, in support of this proposition, placed reliance on the decision rendered by this Bench in State of Karnataka v. Dhulappa (Criminal Appeal No. 41 of 1980 decided on 16-12-1980).
10. We have not in the said decision examined the legal position in regard to the question whether an order passed under Section 360 of the Criminal Procedure Code is a sentence so as to contend that the prayer of the State that such an order is erroneous amounts to praying that the sentence be enhanced. We have proceeded on the basis that the State having in Ground No. 6 contended against the order as sentence, the provisions of Section 377(3) of the Criminal Procedure Code would be applicable. In this connection, we take the opportunity to make it absolutely clear that in that regard we have exercised our revisional jurisdiction and not any other power. Therefore, that situation does not arise in this case though there are two grounds taken in the Memorandum of Appeal against the order passed by the Additional Sessions Judge under Section 360 of the Criminal Procedure Code as being erroneous. It was pointed out by the learned State Public Prosecutor that the accused having been convicted and they having not preferred any appeal, it is not permissible in law to contend against the conviction and sentence because of the decision in State of Andhra Pradesh v. T. Narayana : 2SCR904 which has been followed by this Court in State of Mysore v. Hanamant Nagappa, (AIR 1965 Mys 150) : ((1965) 1 Cri LJ 737). In T. Narayana's case, the Supreme Court has made it absolutely clear that the powers exercised by the Court in exercise of its revisional jurisdiction are not at all touched in the said decision. In fact they have excluded those powers out of the ambit of the said decision. Such a question did not arise before this Court in Hanamant Nagappa's case. My learned brother Patil, J. has, while dealing with Sections 377 and 401 of the Criminal Procedure Code in Food Inspector v. Raphael (Criminal Revision Petition No. 331 of 1979 decided on 10-10-80) : (reported in 1981 Cri LJ 1149 (Kant) concluded accordingly. Therefore, in exercise of our jurisdiction and powers we have to see whether the Additional Sessions Judge was right in discarding the evidence of P.W. 14 and accepting the evidence of P.Ws. 9 and 10, and whether his view is one of the two reasonable views possible under the facts and circumstances of the case.
11. The reasons given by the learned Additional Sessions Judge to discard (evidence of) P.W. 14 are unsound on their very face. P.W. 14 has admitted in his cross-examination that he had taken Rs. 1,500/- from A-1 and that he had given the land for cultivating to A-1 and A-1 had put up a pipe line in the land. His evidence is supported by P.W. 4 in the cross-examination, an independent disinterested witness, who has acted as a panch to some of the panchanamas in this case. These facts show that the say of P.Ws. 9 & 10 in regard to the land having been cultivated by themselves and the deceased is, on the face of it, false. There cannot be any two reasonable views possible on this aspect of the matter. This is the only one that has to be taken. We take that view. Now, in view of the fact that P.W. 9 has sustained some injuries as narrated by P.W. 2 who examined her by 3-35 p.m. on that day, it is possible to contend that her presence during the incident has been satisfactorily established. Even if that be so, the question that arises is as to when the incident took place in which the deceased and P.W. 9 sustained injuries and in what manner the incident took place. According to P.Ws. 9 and 10 the incident took place at about 11-00 a.m. i.e., between 4 and 5 hours after sun-rise. According to P.W. 14, it was at about 8-00 a.m. on 29-10-1978 that P.W. 10 went to him while he was in the hospital in Jamakhandi and informed that some fighting had taken place in the land and that Siddappa the deceased was lying injured in the land. Hence, it is clear that even by 8-00 a.m. the incident had taken place. But P.Ws. 9 and 10 have put forth a version advancing the time of the incident to 11-00 a.m. This aspect of the matter has been totally ignored by the Additional Sessions Judge before accepting the evidence of P.Ws. 9 and 10 as reliable. The say of P.W. 10 as available in the evidence of P.W. 14 that the fighting had taken place in the land and the fact that A-1 and his people were cultivating the land he having been put in possession by P.W. 14 and further the fact as is seen from the panchanamas and the evidence of the investigating officers that two more sticks were found on the spot, leads to the only reasonable view, that a fight had taken place between these two groups much earlier to 11-00 a.m. on 29-10-1978 and it was during such a fight that P.W. 9 and the deceased sustained injuries. This is not at all the prosecution case. Hence the very basis of the prosecution case is shaken to such an extent as to make the evidence of P.Ws. 9 and 10 unreliable. We have gone into this aspect of the matter as already made clear, in exercise of our revisional jurisdiction and not by virtue of Section 377(3) of the Criminal Procedure Code.
12. We have exercised our revisional jurisdiction in view of the fact that the records are before us and it has come to our knowledge as required by Section 401(1) of the Criminal Procedure Code as to what has transpired in the case and as to how the evidence does not lead to two reasonable views in regard to the incident involved. In view of the very fact, it having come to our knowledge, that the Additional Sessions Judge has, in the first instance, convicted and sentenced the accused persons and then applied Section 360 of the Criminal Procedure Code, we have noted it in exercise of our revisional jurisdiction. A plain reading of Section 360 of the Criminal Procedure Code shows that the Additional Sessions Judge was not right in applying Section 360 of the Criminal Procedure Code at that stage. Moreover Section 360 of the Cr.P.C. would not be applicable when a person is convicted of the offence punishable under Section 326 I.P.C., the maximum punishment provided for which is imprisonment for life.
13. In the result, We dismiss the appeal of the State and in exercise of our powers under Sections 397 and 401 of the Criminal Procedure Code we set aside the order of conviction and the order purporting to be under Section 360 of the Criminal Procedure Code passed by the Additional Sessions Judge, Bijapur in Sessions Case No. 16 of 1979 against the respondents-accused and acquit them.
14. Appeal dismissed.