Full Judgment
(Prayer: This Criminal Appeal is filed under Section 378(1) and (3) of Code of Criminal Procedure seeking to set aside the Judgment and Order of acquittal Dated 06.01.2012 passed by the Fast Track Court-III, Hospet, in S.C.No.67 of 2011 and consequently convict the accused for the offence charged in the interest of justice.)
Ravi Malimath, J.
1. The case of the prosecution is that on 15.07.2010, PW1 and PW2 were returning from Bandihalli village to Morab village on a motorcycle. PW2 was riding the motorcycle and PW1 was the pillion rider. At about 12 noon, on the rough road by the side of the water tank of their village, accused Nos. 1 to 3 stopped them on the road. They dragged PW2 from the motorcycle, assaulted him by means of stones over the left side of his head, caused bleeding injuries and assaulted on his leg and other parts of the body. PW1 ran away from the scene and informed his wife and children and also informed the brother of PW2 about the incident. Based on the said facts, a case was registered in crime No.55 of 2010 for the offences punishable under Sections 323, 324, 326, 341, 307 read with Section 34 of the Indian Penal Code ('the IPC', for short). Investigation was taken up and charge sheet was filed. Accused were charged for the offences punishable under Sections 307 and 341 read with Section 34 of the IPC. The case was committed to the Court of Sessions. Accused pleaded not guilty. In order to prove its case, the prosecution examined 8 witnesses and marked Exhibits PI to P7(a) along with 6 material objects. By the impugned judgment, the accused Nos.1 to 3 were acquitted for the offences punishable under Sections 307 and 341 read with Section 34 of the IPC. Aggrieved by the same, the State has filed this appeal seeking to reverse the judgment of the trial Court and seeking conviction of the accused.
2. Sri. V. M. Banakar, learned Additional State Public Prosecutor, contends that the trial Court failed to consider the evidence and material on record. That the trial Court committed a blunder in holding that there is delay in lodging the FIR. That the trial Court committed error in holding that there were major discrepancies in the evidence of PW1 and PW2 and therefore the trial Court did not accept the evidence of both the eyewitnesses. That the trial Court also committed an error in holding that there were discrepancies in the evidence of the eyewitnesses and the doctor. He pleads that even though there were several disputes between the parties, the same cannot act as a licence to commit a criminal offence. Hence he seeks that the appeal be allowed and the accused be convicted for the offence charged against them.
3. On the other hand Sri. M. S. Harvi, learned counsel for the respondents defends the same. He contends that the prosecution has failed to establish its case beyond all reasonable doubt. That there are serious inconsistencies in the evidence of PW1 and PW2. That PW1 and PW2 both being eyewitnesses and since their evidence run contrary to one another, the trial Court has rightly acquitted the accused. He further pleads that there is substantial delay in lodging the complaint, which proves fatal to the case of the prosecution. That there is a discrepancy between the evidence of the eyewitnesses and the doctor. On all these grounds, the trial Court has rightly acquitted the accused. Hence no interference is called for.
4. PW1 is the pillion rider of the two wheeler. He has stated in his evidence that on the date of the incident, he and PW2 were travelling in the two wheeler in the rough road, when they were returning from Marab village. At around 12 noon by the side of the water tank of their village, all the three accused accosted them. They fell down. He ran away from the scene of offence. He went to the village and informed his wife and children about the incident and also informed the brother of PW2.
5. PW2 is the rider of the two wheeler. He has stated in his evidence that when he and PW1 were returning at about 12.00 noon, the accused accosted them on the road. The accused No.2 assaulted him with stones on his head. He fell down. He caused injuries on his leg and other parts of the body. That there was severe bleeding. He became unconscious. In the course of cross examination, he has narrated that accused No.1 as well as accused No.3 have assaulted him with stones on his head. He has clearly narrated the manner in which the incident has occurred. The defence have extracted the complete details of the manner in which the incident has occurred during the cross-examination.
6. PW3 is the wife of PW2 who has not seen the incident and hence her evidence is not of much avail. PW4 is the doctor who examined PW2. He has examined PW2 and has issued the wound certificate in terms of Exhibit P2. He has narrated the serious injuries sustained by PW2. PW5 is the mahazar witness to the seizure of material objects on the spot. PW6 is one of the witness to the seizure of shirt and pant of injured PW2. PW7 is the ASI who registered the case. PW8 is the PCI, who conducted the investigation and filed the charge sheet.
7. We have considered the evidence as well as the judgment of the learned Sessions judge. The first ground on which the accused were acquitted is on the ground of delay in lodging the complaint. The incident is said to have been taken place at 12.00 noon. The complaint was lodged at 2.00 pm. After the incident took place, PW1 went to his village and informed his wife and children and also informed the brother of PW2. Thereafter, all of them were brought to the scene of offence. After seeing the injured, he was shifted to the hospital and a complaint was lodged. The complaint was lodged exactly after 2 hours of the incident having taken place. The trial Judge failed to consider the natural time that lapsed in the intervening period. Firstly there is a distance of 3 kms to travel to lodge the complaint. Secondly, PW1 traveled from the spot to the village and brought all of them back to the scene of offence. Therefore, we have no hesitation to hold that there is absolutely no delay in lodging the complaint.
8. The second reason assigned by the trial Court is that there has been inconsistencies in the evidence of PWs. 1 and 2 and therefore, the case of the prosecution cannot be accepted. PW1 has narrated that on the date of the incident, the accused stopped them and assaulted PW2. He ran away from the scene of offence. However, the same is read by the trial Judge to indicate that since PW2 has narrated the incident in detail, which has not been stated by PW1, there are material inconsistencies.
9. We are unable to accept the appreciation of evidence by the trial Judge. There are no details forthcoming in the evidence that PW1. He has only narrated that they were accosted by the accused, they fell down from the motorcycle and thereafter PW1 ran away from the scene of offence. On the contrary, PW2 has narrated in detail the manner in which the incident occurred. He has attributed overt acts to each one of the accused Nos. 1, 2 and 3. He has narrated the manner in which each one of them assaulted him. Therefore it cannot be said that there are material contradictions in the evidence of PWs 1 and 2. On the contrary, the evidence of PW1 is totally silent with regard to the assault by any of the accused. The silence in the evidence of one witness and the detailed reference to the entire act by another witness cannot be said to be a material inconsistency. Material inconsistencies will arise when one witness states a particular fact in a particular manner and the other witness states the same in a different manner. That would amount to a material inconsistency. Whereas in the evidence on record, PW1 has not narrated the manner in which the actual incident occurred or the assault by each one of the accused. The same has been explained in complete detail by PW2. Therefore, the reasoning assigned by the trial Court cannot be appreciated. There is an absolute misreading of the evidence by the trial Court in coming to the conclusion that there are material consistencies in the evidence of PW1 and PW2.
10. The further reasoning of the trial Court is that there were contradictions between the evidence of the eyewitnesses and that of the doctor. In reference whereof, we have examined in length the wound certificate issued by the doctor. He has narrated the injuries sustained by PW2. The first injury is a cut lacerated wound and bleeding present. Both bones are visible with multiple preces. Second injury is a cut lacerated wound of the left parietal region measuring 8x2 cms. Bleeding was present. The X-ray shows that head of left fibula, left fibula upper 1/3rd and lower 1/3rd tibia middle 1/3" of left leg and left fibula lower end and head of left fibula are fractured. That left leg with ankle joint fracture, tibia middle 1/3rd with missing of middle segment surgical implant, fracture of upper end and lower end of fibula of left leg. The evidence of the doctor is in consonance with the wound certificate issued by him. It is also in consonance with the evidence let in by the PW2 with regard to the nature of assault. PW2 has narrated the nature of the assault on his head with stones, which is reflected in injury No.1. He has also narrated that the accused No.2 assaulted him over his legs which is evidenced from injury No.2 as well as the X-ray reports which indicate multiple fracture that he has sustained. Therefore, to arrive at a conclusion that the evidence of the doctor is inconsistent with the evidence of the witnesses is therefore incorrect. The same is not a proper appreciation of the evidence of the eyewitnesses as well as the doctor.
11. Hence we are of the view that the trial Judge completely misread the evidence and wrongly came to the conclusion that the medical evidence is inconsistent with the statement of eyewitnesses.
12. Under these circumstances, we have no hesitation to hold that the trial judge completely misdirected himself in coming to the erroneous conclusion. The evidence on record would lead to the only conclusion that the accused have committed the offence charged against them. That serious injuries have been caused on PW2 over his head, leg and other vital parts of the body. The prosecution has proved its case beyond all reasonable doubt with regard to the assault by the accused. The evidence would indicate that it was accused No.2 who caused the serious injury of assault over the head and legs of PW2. The accused Nos. 1 and 3 assisted accused No.2 in the commission of the offence. Therefore, we have no hesitation to hold that the trial Judge committed an error in acquitting the accused.
13. We have re-appreciated the entire evidence. We have heard the learned counsel at length. We are aware of the limitations in reversing an order of acquittal passed by the Trial Court. However, the material evidence would clearly indicate the guilt of the accused. The prosecution has established its case beyond all reasonable doubt. There has been complete perversity in the findings recorded by the trial Court which require to be reversed. It is not a case that a second view is being appreciated by the Appellate Court. In fact based on the findings, the only view that is possible is that the prosecution has proved its case beyond all reasonable doubt.
14. On considering the evidence and material on record, we are of the view that the offence committed by the accused may not attract the provisions of Section 307 of the IPC. There was no intention by the accused to commit the murder of PW2. Even though the injuries were caused on the vital parts of the body, there was absence of intent to commit the murder. We say so because after the incident, injured is said to have become unconscious and fell down on the scene of offence. PW1 ran away from the scene of offence. There was nobody to protect PW2. Accused had stones in their hands. They could have very well committed the murder of PW2 at the scene of offence itself. Moreover, the injuries having been caused by accused No.2 on the head and legs have resulted in fractures to PW2. Therefore, we are of the new that the provisions of Section 307 of the IPC do not get attracted to the facts and circumstances of the case. Based on the injuries sustained and keeping in mind the fact that there were civil disputes between the complainant and the accused, the accused are liable to be convicted for a lesser offence of Section 324 read with Section 34 of the IPC. The injuries caused by the accused have been caused voluntarily by the weapons material objects 1 to 3 i.e., stones. But there was no intention to cause the death of PW2. Therefore, we are convinced that the accused should be convicted for the offence under Section 324 read with Section 34 of the IPC.
Consequently, the appeal is partly allowed. The judgment of acquittal passed by the Fast Track Court-III at dated 06.01.2012 in Sessions Case No.67 of 2011 is reversed. The accused Nos. 1 to 3 are convicted for the offence punishable under Section 324 read with Section 34 of the IPC. We have heard the learned counsel for the respondents on sentence. He contends that the accused have been in custody for one month eight days. That they have families to maintain and they are the only bread earners and therefore leniency is to be shown. On the other hand, learned Addl. SPP submits that grave injury has been caused by the accused and hence they do not deserve any leniency.
On hearing learned counsels, we are of the view that an appropriate sentence is called for. Since the accused have already undergone custody of one month and eight days, we deem it just and proper to sentence them to imprisonment for the period already undergone by them. Insofar as fine to be levied on the accused is concerned, the prosecution has established its case that accused No.2 caused the injuries on PW2. Therefore, accused No.2 will be liable to be sentenced to fine also. We have considered at length the capacity of the accused to pay the fine and the injuries caused by them. It would be just and appropriate that accused No.2 be directed to pay a fine of Rs.25,000/-. Insofar as accused Nos. 1 and 3
We are concerned, they have assisted in the commission of the offence. But however, they have wrongfully restrained PW2 and assisted accused No.2 in the commission of the offence. Hence we deem it just and necessary to impose a fine of Rs.10,000/- on each one of the accused Nos. 1 and 3. We are of the considered view that it would be just and appropriate if the fine is paid to PW2. The same is reasoned due to the fact that PW2 having suffered injuries was in the hospital for one month. Therefore, it would be appropriate if the fine amount is paid to him.
The fine amount totaling to Rs.45,000/- shall be deposited by the accused before the trial Court within a period of four weeks from the date of receipt of copy of this order. On such amount being deposited, Rs.5,000/- shall be paid to the State Government in order to defray the prosecution expenses. The balance of Rs.40,000/- shall be paid to PW2.
Ordered accordingly.