Judgment:
R1IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE25H DAY OF NOVEMBER, 2021 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR CRIMINAL APPEAL No.520 OF2011BETWEEN:
1. Sri. Guruswamy S/o. Doddahydegowda Aged about 36 years 2. Sri. Kariyappa S/o. Magappa Aged about 58 years 3. Sri. Krishnakumar S/o. Kariyappa Aged about 26 years 4. Sri. Magappa S/o Kariyappa Aged about 24 years 5. Sri. Papa @ Byraja S/o. Bhyrappa Aged about 21 years All are residing at Thayappanadoddi Village Bidadi Hobli Ramanagara Taluk. ...Appellants 2 (By Sri. Shivaraj Jaded – Advocate for Sri. C.H. Hanumantha - Advocate for Appellant No.1; Sri. H.C. Hanumaiah – Advocate for Appellants No.2 to
4) AND: State of Karnataka By Bidadi Police Station Ramanagara District. ...Respondent (By Sri. Rahul Rai K - HCGP ) This Criminal Appeal filed under Sec.374(2) of Criminal Procedure Code, by the Advocate for the appellant praying to set aside the judgment, conviction and sentence passed by the Presiding Officer, Fast Track Court at Ramanagara in S.C.No.7/2009 vide its judgment dated 20.04.2011 and acquit the appellants for the offences convicted in this case. This criminal appeal coming on for hearing this day, the court delivered the following:
JUDGMENT
This appeal is directed against the judgment rendered by the Trial Court in S.C.No.7/2009 dated 20.04.2011 convicting the accused for offences punishable under Sections 143, 147, 148, 324, 326 read with Section 149 of the Indian Penal Code, 1860 3 (for short ‘IPC’) and also sentenced to pay fine for the aforesaid offences as incorporated in the operative portion of the order. This appeal is filed seeking for consideration of the grounds urged in this appeal and consequently to set aside the judgment of conviction and order of sentence rendered by the Trial Court for the grounds urged therein.
2. Heard the learned counsel Shri H.C.Hanumaiah for Accused Nos.2 to 4 and so also learned Senior counsel Shri C.H. Hanumantharaya in respect of Accused No.1, who is on record, but in conformity with the arguments of the counsel for Appellants No.2 to Appellants No.4. However, heard arguments of the learned counsel for appellants and learned HCGP in toto. Perused the impugned judgment of conviction and order of sentence rendered by the Trial Court in S.C.No.7/2009 dated 20.04.2011 consisting the evidence of PWs 1 to 12 and also documents at Exhibits 4 P1 to P9 inclusive of material objects i.e. MO-1 to MO-4.
3. Factual matrix of the appeal are as under: It transpires from the case of the prosecution that on 28.02.2007 at around 8.00 a.m. in the morning hours at Thayappanadoddi village, when the complainant and the injured Nanjappa were present in complainant’s house, the accused persons are alleged to have formed an unlawful assembly and trespassed into the house of the complainant by holding deadly weapons such as chopper, clubs in their hands. The accused are alleged to have entered into the compound of the house of the complainant out of previous ill-will or animosity which had developed in between the complainant’s family and the accused family. In furtherance of the common object relating to the land in dispute, the accused is said to have thrown/slashed a chopper on the head of Nanjappa / PW-1 and in order to avoid the hit made by the accused that he had 5 prevented it using his hand as wards for rescue. As a result, he had sustained bleeding injuries on his right hand palm part. In the meanwhile of the incident, wife of the complainant Susheelamma / PW-2 and sister-in- law Manjula / PW-3 had intervened to pacify the quarrel / quell the incident. Because of the said intervention, Accused No.4 is alleged to have assaulted Manjula with the hind portion of the chopper alleged to be used by Accused No.1. As a result of that, Manjula had sustained injuries on her left forearm. In the meanwhile of the incident, PW-1 Nanjappa had sustained injuries on his head part and also on his right palm and his right hand fingers are alleged to be cut off by sustaining grievous injuries. PW-2 / Susheelamma and PW-3 / Manjula had sustained injuries voluntarily and the incident has been narrated in the complaint. In pursuance of the act of the accused, on the filing of a complaint statement at Exhibit P2 by the complainant i.e., the victim Nanjappa / PW-1, criminal law was set 6 into motion by registering the case in Cr.No.103/2007 for alleged offences punishable under Sections 143, 147, 148, 324, 506 read with Section 149 of the IPC, 1860. But Section 307 of the IPC has been invoked in the aforesaid crime based upon the supplementary statement given by PW-1 / Nanjappa while he got admitted in Victoria Hospital and was an in-patient in the said hospital for a period of 26 days.
4. It is relevant to refer that the criminal law was set into motion by registering the FIR at Bidadi P.S. for offences under Sections 143, 147, 148, 324, 506 read with Section 149 of the IPC, 1860. The informant is none other than PW-1 / Nanjappa and based upon the complaint, criminal law was set into motion.
5. Subsequent to registration of the crime, the I.O. has taken up the case for investigation and conducted thorough investigation and during investigation, recorded the statement of witnesses and so also drew the seizure mahazar at Exhibit P1, spot mahazar at 7 Exhibit P4 and another panchanama at Exhibit P8 and all materials were collected by the I.O. during the course of investigation inclusive of wound certificate of PW-2 / Susheelamma at Exhibit P5, the Wound certificate of PW-3 / Manjula at Exhibit P6 and Wound Certificate of PW-1 / Nanjappa at Exhibit P7. These are all the materials collected by the I.O. during the course of investigation and thereafter he laid the charge-sheet against the accused.
6. Subsequently, the case was committed to the Sessions Court for trial and based upon committing the case, the case in S.C.No.7/2009 has been assigned and thereafter the accused were secured and were subjected to trial for the aforesaid offences by framing charges against the accused. The accused pleaded not guilty and claimed to be tried. During trial, the prosecution subjected to examination several witnesses namely PW1 to PW12 and got marked Exhibits P1 to P9 and so also material objects at MO1 to MO4. Subsequent to closure 8 of the evidence on the part of the prosecution, incriminating statements of accused persons as contemplated under Section 313 of the Cr.P.C. was recorded, whereby the accused had denied the truth of the evidence of the prosecution. Further, accused did not come forward to adduce any defence evidence as contemplated under Section 233 Cr.P.C. The Trial Court after hearing the arguments advanced by the prosecution and so also the defence counsel and on scrutinizing the evidence of the prosecution and so also the documents at Exhibits P1 to P9 inclusive of MO-1 to MO-4 and so also evidence, had framed the points that arose for its consideration and answered point Nos.1 to 4 in the affirmative, point Nos.5 and 6 in the negative and point no.7 as per the final order and thereby convicted the accused for offences punishable under Sections 143, 147, 148, 324 and 326 read with Section 148 of the IPC and acquitted the accused for offences punishable under Sections 506 and 307 read with 9 Section 149 IPC. It is the conviction judgment which is under challenge in this appeal by the learned counsel for appellants, by urging various grounds for intervention.
7. Learned counsel for the appellants namely Sri.H.C.Hanumaiah contends that though the prosecution has let in evidence to prove the guilt of the accused and even the narration of the allegations made in the complaint statement as per Ex.P2 given by PW1 - Nanjappa who is the injured and he was taken to Bidadi Government Hospital and while he was under treatment his further statement has been recorded as per Ex.P3. Thereafter, the crime came to be registered and proceeded with the case for investigation. But it is contended that FIR has not been recorded on the part of the prosecution even for substantiating the allegations made in the complaint at Ex.P2 and so also, substance made by the investigating agency to proceed in further for investigating the case and laid the charge sheet 10 against the accused. But the trial Court rendered the conviction judgment without appreciating the evidence of PW.1 – Nanjappa who is an injured and also subjected to examination by the Doctor who issued wound certificate at Ex.P7. But this wound certificate was issued by PW.12 – Dr.Srinivas who has not provided any treatment to him. But based upon the administrative instructions and case sheets he issued the wound certificate of PW.1 – Nanjappa as per Ex-P7.
8. PW.2 – Susheelamma is also injured person who had sustained some injuries and accordingly, PW.11 – Dr.Raghuramaiah has issued wound certificate at Ex.P5. Similarly, PW-3 – Manjula who is also the injured had sustained injuries and accordingly, wound certificate as per Ex.P6 has been issued by the Doctor. The injuries sustained by PW.2 and 3 are simple in nature. But the injuries sustained by PW.1 – Nanjappa as per Ex.P7 are grievous in nature. The injuries were 11 inflicted on the right hand palm. He was admitted to Victoria Hospital and took treatment as an inpatient for a period of 26 days. Because of the said reason Section 307 of IPC was invoked by making a request to the committal Court by the investigating agency only with due deliberation and discussion for insertion of the said provision to suit their purpose. The complainant and his family members and the accused and their family members are close relatives to each other. But due to the civil disputes emerged in between them, the incident is alleged to have taken place and consequently, criminal law was set into motion. But at a close scrutiny of the complaint statement as per Ex.P2 and so also, further statement as per Ex.P3 which are given by PW.1 – Nanjappa, he was admitted as inpatient in Victoria Hospital. However, as under Section 161 of Cr.P.C. there is no bearing even for supplementary statement that has been given by PW.1 – Nanjappa. The clinching materials even though on the part of the 12 prosecution as contended, but his supplementary statement at Ex.P3, it is contrary to the allegations made in his complaint statement at Ex.P2. This contention has been taken by counsel for the appellants and seeking for intervention of this Court, if not, appellants who are the gravamen of accusation would be the sufferers and also there shall be miscarriage of justice to them.
9. The second limb of the arguments advanced by learned counsel for the appellants by referring to the evidence of PWs.1 to 3 who are the injured witnesses and PW.5 – Rajashekarappa who is none other than the relative of the injured and similarly relative of the accused also. But his evidence founds to be contrary to each other and also there are some inconsistencies. But the trial Court has considered their evidence by giving more credentiality and erroneously come to the conclusion that the prosecution has proved the guilt of 13 the accused. Therefore, it requires intervention for re-appreciation.
10. PW.2 is the wife of PW.1 – Nanjappa, PW.3 is the sister-in-law of PW.1 – Nanjappa and PW.5 – Rajashekarappa is the brother-in-law of PW.1 – Nanjappa who is the injured and based upon his complaint as per Ex.P2 and so also, supplementary statement as per Ex.P3, criminal law was set into motion insofar as serious offence under Section 307 of IPC. But none of the neighbors are cited as witnesses and admittedly number of residential houses were situated in the locality as where the alleged incident took place in and around the house of PW.1 – Nanjappa. However, the trial Court has given more credentiality to the evidence of aforesaid witnesses on the part of the prosecution. But under the given peculiar facts and circumstances of the case, in this appeal it requires for intervention of this Court, if not, certainly the appellants being the gravamen of the accusation would 14 be the sufferers and miscarriage of justice would cause to them.
11. It is further contended by counsel for the appellants relying on the evidence of PWs.1 to 3 and 5 who are the material witnesses and also vital witnesses on the part of the prosecution as their evidence has to be closely scrutinized and also to be analysed as they are found to be contrary. PW.10 – A.Yalagaiah who is an IO in part who had recorded the supplementary statement as per Ex.P3 and made some request in terms of the requisition filed before the Committal Court for invoking Section 307 of IPC. Based upon such request Section 307 of IPC came to be invoked for the reason that PW.1 – Nanjappa was got admitted in Victoria Hospital as inpatient for treatment for a period of 26 days. He had sustained injury over right hand palm and cut injuries were inflicted with means of M.O.3 – chopper and M.O.4 – long chopper. Even if 15 M.O.3 and 4 have been seized under Ex.P8 – seizure mahazar in the presence of PW.6 and 9 and the same were sent to FSL for subjecting the same to chemical examination and issue report. The articles have been seized by the investigating officer during the course of investigation and the same has been carried by PW.7 – Govindaiah/police official witness. But the investigating agency did not made any endeavour to secure the FSL report to prove the facts of M.O.3 - chopper and M.O.4 – long chopper alleged to have been used by the accused persons that they were blood stained. Whether that blood stains of PW.1 found on the chopper and the long chopper which were seized by the IO during the course of investigation and the blood stains found on the said articles is not forthcoming on the part of the prosecution to prove the guilt and even investigating agency did not made any effort to secure FSL report to prove the guilt of the accused for consideration. 16
12. The trial Court has failed to see that the X-ray film alleged to have been taken regarding the injury of PW.1 and it has not been produced before the trial Court and in the absence of X-ray, the prosecution has not made out whether the injuries are grievous or simple in nature as contended. Further, the trial court has failed to appreciate the evidence that the weapons have been seized at the instance of PW.1 and they have no specific identification mark to identify as to which of the accused was holding which of the weapons and further the nature of the weapon alleged to have been used during incident itself is contradictory with each other between the evidence of PWs.1 to 3 and 5. Even the seizure mahazar at Ex.P1 which was drawn by PW.9 – H.C.Jagadish who is an IO in part. But however, the prosecution has given the evidence by subjecting to examine PWs.1 to 12 and has given more credentiality as well as reliance is placed on the evidence of PWs.1 to 3 and 5 but PW.5 – Rajashekarappa is the relative of 17 PW.1 – Nanjappa by using deadly weapons of MOs.3 and 4, chopper and long chopper are founds to be clouds of doubts in a theory of the prosecution. But the trial Court has given more credentiality and also placed reliance on the aforesaid witnesses facilitated by the prosecution and erroneously came to the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt.
13. Lastly, counsel for the appellants referred to the motive factor relating to the incident narrated in the statement of complaint at Ex.P2. But there was enmity developed in between the family members of the complainant and so also, accused who are the appellants before this Court. But number of cases have been registered by the complainant who is the gravamen of the incident and criminal law was set into motion against the accused and even vice-versa, further, the availability of only interested witnesses other than the 18 independent witnesses. When that being the case, the trial Court ought not to have considered the evidence facilitated by the prosecution in a proper prospective manner and only considered the quantity of the evidence and not the quality of the evidence and more so, relied upon the evidence and interested and inimical witnesses between the complainant group and accused group. On all these premises counsel for the appellants submitting for consideration of the grounds as urged in this appeal and set-aside the judgment of conviction rendered by the trial Court in S.C.No.7/2009 dated 20.04.2011 and consequently, acquit the accused persons for the offences punishable under Sections 143, 147, 148, 324, 326, 506, 307 r/w 149 of IPC.
14. On controvert to the arguments advanced by the learned counsel for the appellants, learned HCGP for State has taken me through the evidence of PW.1 – Nanjappa who is none other than the injured and he 19 has sustained injuries as indicated in Ex.P7, wound certificate issued by PW.12 being the doctor on some instructions by the administrative branch. Mere because he has not examined the injured, his evidence cannot be brushed aside. The prosecution subjected to examine PW.1 – Nanjappa relating to prove the guilt as narrated in the complaint statement as per Ex.P2 and supplementary statement as per Ex.P3. Ex.P3 has been recorded by PW.10 – A.Yalagaiah who is an IO in part and based upon the supplementary statement criminal law was set into motion by invoking Section 307 of IPC whereby the accused have made an attempt to take away the life of PW.1 – Nanjappa and also PW.2 – Susheelamma and PW.3 – Manjula who also sustained injuries as per the wound certificates at Exs.P5 and 6. PW.11 – Dr.Raghuramaiah had given treatment and also issued wound certificate and there is no dispute that PWs.2 and 3 have also sustained injuries. The accused have used deadly weapons M.O.3 – chopper 20 and M.O.4 – long chopper. Whereas the accused have caused injuries on the right hand palm of PW.1 – Nanjappa and also made attempt to take away his life and similarly that of PWs.2 and 3 who had come forward to rescue the life of PW.1 as where the accused persons had made an attempt to take away their life and also inflicted injuries which indicates in the wound certificates as per Exs.P5 and 6. Even the Doctor who had issued wound certificate opined that the injuries are simple in nature. Merely because the injuries are simple in nature and that the FSL report has not been secured by the IO even for subjected to chemical examination relating to M.O.3 and 4, but it cannot be a ground for intervention as sought for under this appeal when the prosecution has facilitated worthwhile evidence.
15. The trial Court has given findings by appreciation of evidence of PWs.2 and 3. Accused No.4 21 Magappa had caused injuries on PWs.2 and 3 and Accused No.1 has caused grievous injuries by assaulting on the right hand palm of PW.1, but the same cannot be over-ruled and brushed aside the evidence of PWs.1, 2 and 3 on the part of the prosecution and the same has been appreciated by the trial court and even other accused have also participated relating to commission of offences. Admittedly, accused persons belong to one family and complainant and PW.2 belong to other family. But the dispute in between the complainant’s family and the family of the accused, the role made by each of the accused in committing the offences cannot be brushed aside. They entered into the compound area of the house of PW.1 – Nanjappa with a common object and it cannot be over-ruled at any stretch of imagination. But the prosecution has proved the guilt of the accused by putting forth the evidence of PWs.1 to 3 who are the injured witnesses and more so, they have been 22 subjected to medical examination by PW.11 – Dr.Raghuramaiah. PW.12 – Dr.Srinivas is the Doctor who issued wound certificate at Ex.P7 relating to PW.1 – Nanjappa. Mere because PW.12 did not provided any treatment to PW.1, his evidence cannot be brushed aside. It is the domain vested with the prosecution to prove the guilt of the accused. Accordingly, the aforesaid material witnesses have been subjected to examine and the same has been appreciated by the trial Court that probabalised the evidence of material witnesses that the accused persons were present at the scene of crime on the date of incident which narrated in the complaint as per Ex.P1 in furtherance of common object to take away the life of PW.1 and also made an attempt to take away the life of PWs.2 and 3 though they have sustained simple injuries as per Exs.P5 and P6.
16. Whereas in a totality of the circumstances, the prosecution has successfully proved the guilt of 23 accused and accordingly, PWs.1 to 3 and 5 have been subjected to examination on the part of the prosecution and there was some strong motive for commission of offence and more so, ill-will developed in between the complainant’s family and accused family, even though they are close relatives to each other. But prior to commission of offence, there was some ill-will because of the reason as on the date of the incident, the accused had entered into the compound of the house of PW.1 by holding deadly weapons of M.O.3, Chopper and M.O.4 – long chopper and caused injuries over the person of PW.1 to 3. Whereas the evidence of the material witnesses such as PWs.1 to 3 and 5 corroborates with the evidence of PWs.11 and 12 being the Doctor who gave the treatment to the injured and their evidence has been considered by the trial Court as wherein PW.1 – Nanjappa who sustained grievous injuries and more so, voluntarily causing hurt by accused No.2 also relating to PWs.2 and 3. Therefore, PW.5 has stated in his 24 evidence on the part of the prosecution relating to participation of all the accused at the time of incident as narrated in the complaint at Ex.P2 and so also fulcrum of facts at Ex.P1 – Mahazar and Ex.P4 – spot mahazar and Ex.P8 – another panchanama which were drawn by PWs.9 and 10 who are the investigating officers in part.
17. Learned HCGP has further taken me through MOs.3 and 4 chopper and long chopper. These deadly weapons are used by accused Nos.1 and 3 for commission of offence as narrated in the statement of complaint at Ex.P2 and also supplementary statement at Ex.P3. Though there shall be incisive cross- examination, but these material witnesses have been subjected to examine but nothing was elicited to disbelieve the theory of the prosecution even for examining PWs.1 to 3 who are the material witnesses and also the injured witnesses. There was no blood stains on M.O.3 and 4. PW.3 – Manjula who is an 25 injured witness has been subjected to cross- examination and because of long gap time was unable to identify the blood stains and perhaps it might have disappeared or washed out from the material objects.
18. PW.10 is the IO in part and he has supported the case of the prosecution and so also, other witnesses who were subjected to examination on the part of the prosecution. M.O.3 and 4 are the deadly weapons which have been seized during the course of investigation and sent to FSL through PW.7/police official and the same were seized by conducting mahazar. Mere because FSL report has not been secured by the IO it cannot be a ground to set-aside the judgment of conviction and order of sentence rendered by the trial court. On all these premises, learned HCGP for State seeks for dismissal of the appeal being devoid of merits. 26
19. It is in this context of the contentions as taken by learned counsel for the appellants and so also, counter made by learned HCGP for State it is relevant to refer the evidence of PWs.1 to 3 and 5 who are the injured witnesses relating to wound certificates at Exs.P5, P6 and P7. The motive behind commission of offence was due to the ill-will or animosity developed in between the family members of the complainant and so also, the family members of accused. They are the close relatives to each other, but for the ill-will and animosity developed in between them, the alleged incident took place on 28.02.2007 at around 8.00 AM. Based upon the complaint statement given by PW.1 – Nanjappa, criminal law was set into motion and the same has been received by ASI, Ramanagara. While PW.1 was under treatment in Government Hospital, Bidadi on 28.02.2007 at about 9.45 p.m. the statement of PW.1 was recorded before the Medical Officer – Dr.Raghu Ramaiah who was examined as PW.11 and issued 27 wound certificate at Ex.P5 relating to PW.2 – Susheelamma and Ex.P6 relating to PW.3 – Manjula. PW.2 is none other than the wife of PW.1 – Nanjappa and PW.3 is the close relative of PW.1. PW.5 – Rajashekarappa is none other than the close relative of PW.1 – Nanjappa. But criminal law was set into motion based upon the complaint statement at Ex.P2 given by the injured and he has also given supplementary statement at Ex.P3 wherein he got admitted to Victoria Hospital for having sustained injuries on the right hand palm. M.O.3 – Chopper and M.O.4 – long chopper alleged to have been used by the accused for commission of offence on 28.02.2007 at around 8.00 A.M. in the morning hours. Complainant - PW.1 was present in the compound of his house and the accused persons had entered into the compound of house of PW.1 – Nanjappa by forming unlawful assembly by holding deadly weapons such as M.O.3 – chopper and M.O.4 – long chopper with an intention to take away his 28 life as alleged. But the motive behind commission of offence was due to ill-will and also animosity developed in between the complainant and his family members and so also, accused and their family members as there was a land dispute which emerged in between both the families. Accused No.1 alleged to have slashed with M.O.3 – chopper towards PW.1 – Nanjappa and in order to avoid the hit, sustained injuries on his right hand as per Ex.P7 wound certificate. PW.12 is not a treated Doctor but issued the wound certificate only based upon the case sheet maintained in respect of PW.1 – Nanjappa and more so, on the instructions issued by the administration unit in the Victoria Hospital and he has perused the case sheet of PW.1. However, PW.2 – Susheelamma, is the wife of complainant and PW.3 – Manjula is the sister-in-law of the complainant had intervened to pacify the quarrel, but accused No.4 is alleged to have assaulted with the chopper used by the accused No.1 on the hind portion and lumbar region 29 and they sustained injuries as mentioned in the wound certificates at Exs.P5 and P6. But their injuries are simple in nature. The accused were having strong intention or preparation or meeting of mind prior to the incident but one can infer certainly they would have caused injuries to take away the life it is to be termed as dangerous injuries inflicted over their person but it does not finds place in the theory of the prosecution. PW.1 – Nanjappa had sustained injuries on the right hand palm. There is no specific evidence on the part of prosecution whether accused No.1 had used M.O.3 chopper or M.O.4 long chopper. But the narration in the complaint at Ex.P2 and supplementary statement at Ex.P3 given by the complainant PW.1 there is no specific evidence on the part of the prosecution that which accused used which weapon and which accused was holding which deadly weapons in their hands at the time of incident as narrated. 30
20. Whereas the case in Crime No.103/2007 was registered by the Bidadi Police Station based upon the complaint statement at Ex.P2 for the offence punishable under Sections 143, 148, 324, 506 r/w 149 of IPC. PW.1 – Nanjappa got admitted in Victoria Hospital as an inpatient and took treatment for a period of 26 days. Thereafter, Section 307 of IPC was invoked in the said case and based upon which criminal prosecution was initiated by recording FIR and the IO took up the case for investigation and followed the mandatory provision as under Section 173(2) of Cr.P.C. and laid the charge sheet against the accused persons.
21. As at a cursory glance of the evidence of PWs.1 to 3 and close scrutiny of the evidence of PW.5 – Rajashekarappa if the accused were to be having an intention to take away the life of complainant i.e., PW-1, even more preparation would have been made and would have inflicted injuries on PW.1 – Nanjappa and 31 PWs.2 and 3. Mere because injuries are inflicted on their persons as indicated as per wound certificates Exs.P5, 6 and 7, but unless there shall be worthwhile evidence facilitated by the prosecution more credentiality cannot be given to their evidence merely because they are the injured witnesses. At a cursory glance of the evidence of the prosecution relating to the averments at Ex.P1, seizure mahazar which is drawn in the presence of PW.6 – Shivalingaiah and PW.9 – H.C.Jagadish who is an IO in part and also laid the charge sheet against the accused but the fulcrum of seizure mahazar at Ex.P1 and also fulcrum of the facts at Ex.P4 – spot mahazar which was drawn by the IO in the presence of PW.4 – Nagaraju but, more importantly Ex.P8 –panchanama has been drawn by PW.10 who is the IO in part for having seized M.O-3 & M.O-4. But Section 307 of IPC has been invoked for the reasons that PW.1 – Nanjappa was got admitted at Victoria Hospital as an inpatient for a period of 26 days that too 32 be sustained the cut injuries on the right hand palm. But M.Os.3 and 4, chopper and long chopper were alleged to have been used by the accused persons. Even a prudent man can infer even such a kind of deadly weapons have been used and also slashed towards injured PW.1 certainly it would have caused some infliction of some serious injuries. But mere because grievous injuries as indicated at Ex.P7, wound certificate issued by the Doctor/PW12 and he did not provide any treatment to him, it cannot arise for giving more credentiality to the evidence of PWs.1 to 3 and 5. But establishment of involvement of the accused in the incident as narrated in the complaint statement at Ex.P2 and so also, supplementary statement at Ex.P3 it can be appreciated the evidence properly and also totality of the injuries caused on PW.1 – Nanjappa and PW.2 – Susheelamma and PW.3 – Manjula. But at a cursory glance of the evidence of the prosecution and also on re-appreciation of the evidence one can infer 33 that there shall be misdirection as well as misread the evidence by the trial court. Therefore, the trial court ought to have appreciated the evidence of these witnesses cautiously. But the same has not been done. Therefore, in this appeal, the evidence of these witnesses has to be re-appreciated in a proper perspective manner, if not, certainly the gravamen of the accusation would be the sufferers and there shall be miscarriage of justice in respect of the accused.
22. As could be seen from the narration of the complaint statement at Ex.P2, it appears that there was some enmity developed in between the family members of the complainant and so also, family members of the accused due to which the alleged incident has taken place. But Section 335 of IPC, it is relatable to Section 326 of IPC, there shall be sudden and grave provocation. But the ingredients of sudden and grave provocation requires to be established by the prosecution even for the serious offence as under 34 Section 326 and 307 of IPC. But provocation is not sought or voluntarily provoked by the offender even for made attempt to take away the life of the injured by the accused. But it is the domain vested with the prosecution to establish the guilt of the accused by putting forth worthwhile evidence relating to grave and sudden provocation. Due to that provocation the alleged incident took place as narrated in the complaint statement made by PW.1 – Nanjappa. There was some political rivalries emerged in between PW.1 Nanjappa and his family members and accused and their family members. This contention is also taken by learned counsel for the appellants and on this premise seeks for intervention of this Court, if not, there shall be miscarriage of justice.
23. Motive factor is an important element on the part of the prosecution and even the criminal law was set into motion by recording the FIR. Recording FIR is under Section 154 of Cr.P.C and when once the criminal 35 law was set into motion, then the domain it is vested with the investigating agency to proceed with the case for investigation as under Section 173(2) of Cr.P.C. But motive is a thing which was primarily known to the accused or assailant himself and it may not be possible for the prosecution to explain what actually prompted or excited him to commit a particular crime. The motive in a case of circumstantial evidence, the evidence indicating the guilt of the accused becomes untrustworthy and unreliable because most often it is only the perpetrator of the crime alone, who has knowledge of the circumstances that prompted him to adopt a certain course of action leading to commission of crime. Whereas in the instant case, the motive behind commission of crime or offence, there was a civil dispute and that civil dispute turned into criminal in nature. Therefore, the criminal prosecution has been initiated as per the narration of the incident at Ex.P1 – complaint statement by PW.1 – Nanjappa. Therefore, the evidence 36 on the part of the prosecution it should be forthcoming relating to the ingredients of each one of the offence. If the evidence on record suggest sufficient/necessary motive to commit a crime, it is the motive factor which should be appreciated by trial Court keeping in view the involvement of the accused and also involvement of accused alleged to have been participated in commission of offence, if not the gravamen of the accusation would be the sufferers.
24. Section 141 of IPC, it is unlawful assembly – an assembly of five or more persons but there is no upper cap. But for unlawful assembly the commission of offence that kind of ingredients it may not be established by the prosecution it is the domain vested with the prosecution alone and but it is the separation of the chaff from the grains and even sorting and shifting of the evidence and so also marshaling of evidence, it is the domain vested with the trial Court for 37 consideration of evidence forthcoming on the part of prosecution. Even relevancy of motive factor in a case is based on circumstantial evidence, but in the instant case, PWs.1 to 3 being the injured witnesses and PW.5 – Rajashekharappa who is an eye witness, but motive for committing the crime on the part of the accused assumes more importance equally for grave and sudden provocation, who are the actual cause for the incident. But it is the domain vested with the prosecution to prove the guilt of the accused by facilitating worthwhile evidence and there should not be any clouds of doubt. The motive may be an important circumstance even in a case based on circumstantial evidence but even based upon considering the overt act attributed against the accused. But the domain it is vested with the prosecution to prove the guilt of the accused by facilitating the worthwhile evidence and also convincing evidence and role of each one of the accused in a crime and it should be established by the prosecution without 38 giving any clouds of doubt. Establishment of motive is not a sine qua non for proving the prosecution case. But in the instant case the complainant and his family members and accused and their family members are close relatives to each other. Therefore, the motive is a thing primarily known to the accused who are the assailants and it requires to be established by the prosecution by producing worthwhile evidence.
25. Even the complaint statement at Ex.P2 and supplementary statement at Ex.P3, but Section 161 of Cr.P.C. it is examination of witnesses by police i.e., Investigating Officer. But the police means an investigating agency. Any police officer having a domain and also having jurisdiction to proceed in further and making an investigation under the relevant provisions of Code of Criminal Procedure as the domain vested with the Investigating Officer. When once the criminal law was set into motion by registering the crime by the 39 police having jurisdiction, it is the domain vested with the investigating agency to follow the mandatory provisions of Section 173(2) of Cr.P.C. and during the course of investigation to record the statement of witnesses. But in the instant case, PW.1 – Nanjappa who is an injured and based upon his complaint statement at Ex.P2, criminal law was set into motion by registering the case in Crime No.103/2007. But the injured was admitted in the Victoria Hospital as an inpatient and also took treatment for a period of 26 days, then the ASI of Ramanagar had filed a requisition before the Committal Court seeking permission to invoke Section 307 of IPC since the accused persons had made an attempt to take away the life of injured persons. But only attempt made by them would not materialize only for infliction of injuries as indicated in the wound certificates, but it should be established by facilitating corroborative and clinching evidence. 40
26. Whereas learned counsel for the appellant has taken me through Section 161 of Cr.P.C. and more so, evidence of PW.1 who had given supplementary statement at Ex.P3 and the same has been got it marked on the part of the prosecution. But merely because marking of supplementary statement, it would not arise for giving more weightage to the evidence on the part of the prosecution as it is against the concept of Section 161 of Cr.P.C. as the witness who is an injured person. However, it is relevant to refer the case in Crime No.103/2007 registered by the Bidadi Police Station based upon the complaint statement at Ex.P2 given by PW.1 – Nanjappa. But it is contended by learned counsel for the appellants that FIR has not been got it marked. Therefore, there are clouds of doubts that has arise in the mind of the Court where the criminal law was set into motion based upon the complaint statement of PW.1 and so also, invoking Section 307 of IPC based upon the supplementary statement at Ex.P3 41 even though it is not in conformity with the relevant provisions of Code of Criminal Procedure such as Sections 161 and 162. Therefore it requires to re-visit the evidence.
27. When once there is closure of evidence on the part of the prosecution and even on the defense side, but it is the domain vested with the trial Court for appreciation of the evidence even the examination – in – chief or cross-examination whereby elicited in terms of dismantling of the theory to be established by the prosecution after hearing the arguments advanced by both the sides. But Section 3 of the Indian Evidence Act, 1872 that power is always vested to the trial court. The word ‘proved’ as under Section 3 of Indian Evidence Act is defined as ‘a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of 42 the particular case, to act upon the supposition that it exists.’ 28. Further, Section 3 of the Indian Evidence Act, 1872 as regards the concept of disproving a fact, makes it clear that, ‘a fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non- existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.’ 29. Section 3 of the Indian Evidence Act, 1872 as regards the concept of a fact ‘not proved’, states that, ‘a fact is said not to be proved when it is neither proved nor disproved.’ 30. The concept of proved and disproved insofar as Section 3 of the Indian Evidence Act is an important aspect. This domain is vested with the trial Court to appreciate the evidence facilitated by the prosecution 43 and it is the domain of the prosecution to establish the guilt of the accused beyond all reasonable doubt. But in the instant case, at a cursory glance of evidence of PWs.1 to 3 who are the injured witnesses and PW.5 – Rajashekarappa who is the close relative of PW.1 and coupled with the evidence of PW.11 being the Doctor who issued Exs.P5 and P6, wound certificates relating to PWs.2 and 3 for having sustained simple injuries. Ex.P7 is the wound certificate of PW.1 issued by PW.12 doctor on verification of the case sheet maintained relating to PW.1 wherein he was got admitted in Victoria Hospital and took treatment as an inpatient for a period of 26 days. But their evidence founds to be clouds of doubts. When the doubt has been crept in the mind of the Court, in the criminal justice delivery system, the benefit of such doubt shall always be held in favour of the accused alone. In this regard, it is relevant to refer the reliance of Hon’ble Apex Court in the case of Sharad 44 Birdhichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC116wherein it is held as under: “We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh,(l) this Court made the following observations:
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence.
31. In the instant case, there was ill-will or animosity developed in between the family of the complainant and accused and their family members. But the grave and sudden provocation lead to the commission of offences as narrated. In the instant case, 45 the incident took place on 28.02.2007 at around 8.00 AM in the morning hours by entering into the compound of the house of PW.1 by holding deadly weapons of M.O.3 – chopper and M.O.4 – long chopper. There is no specific evidence on the part of the prosecution how that accused persons had entered into the compound of the house of PW.1 whether there was commotion or any sound alleged to have been made to make some altercations with PW.1 and his family members. The same has not been forthcoming on the part of the prosecution to prove the guilt of the accused by facilitating the worthwhile evidence for correction.
32. Section 134 of the Indian Evidence Act, 1872, it is well-known principle of law that the reliance can be based upon even solitary statement of witnesses if the Court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution. In this regard it is relevant to refer the 46 case in Raja v. State (1997) 2 Crimes 175 (Del). Insofar as Section 134 of the Indian Evidence Act, it is the quality of evidence and not the quantity of the evidence which is required to be judged by the Court to place credence on the statement as referred in the decision of Hon’ble Apex Court reported in State of Uttar Pradesh v. Kishanpal, 2008 (8) JT650 Further, in respect of plurality of witnesses, in the matter of appreciation of the evidence of witnesses, it is not the number of witnesses, but quality of their evidence which is important, as there is no requirement in law of evidence that any particular number of witnesses is to be examined to prove/disprove a fact. But the evidence must be weighed and not counted. The test is whether the evidence has a ring of trust, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the 47 adequacy of evidence as has been provided by Section 134 of the Evidence Act. In this regard, it is relevant to refer the reliance of AIR2013SC1204 Further, the law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony of a single witness, into three categories, namely, i) wholly reliable, ii) wholly unreliable and iii) neither wholly reliable nor wholly unreliable. In the first two categories, there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness. It is relevant to refer the 48 reliance of AIR2003SC854in the case of Lallu Manjhi v. State of Jharkhand.
33. Whereas in the instant case PWs.1 to 3 are the injured witnesses and PW.5 is the eye witness on the part of the prosecution and his statement has been recorded. But at a cursory glance of these witnesses on the part of the prosecution and also on close scrutiny of their evidence coupled with the evidence of PWs.9 and 10 who are the Investigating Officers, PW.10 being the IO laid the charge sheet against the accused by drawing the mahazar and seized M.Os.3 and 4 under Ex.P8 and even those materials have been seized during the course of investigation after lapse of certain period of commission of the alleged offence. But at a cursory glance of the entire evidence on the part of the prosecution, it is found that there shall be some clouds of doubts and when once the doubt has been crept in the mind of the Court, in the criminal justice delivery 49 system, the doubt it is always in favour of the accused and consequently, benefit of such doubt shall be held on the part of the accused alone even though the criminal law was set into motion and some witnesses have been examined on the part of the prosecution to prove the guilt of the accused. Therefore, keeping in view the aforesaid reasons in this appeal, it is opined that the prosecution did not facilitate worthwhile evidence by producing positive, consistent and corroborative evidence to probabalise that the accused have committed the alleged offence as narrated in the complaint statement as per Ex.P2 and supplementary statement as per Ex.P3 and consequently, the accused deserve for acquittal on the ground that the prosecution did not even made any venturing to prove the guilt of the accused for the offence under Sections 307 and 506 of IPC which ended in acquittal. But conviction was held only by giving more credentiality to the evidence of PWs.1 to 3 and 5. But one can infer as prudent man 50 that the accused entered into the compound of the house of PW.1 due to ill-will or animosity and caused some injuries as indicated in the wound certificates as per Exs.P5 and 6 in respect of PWs.2 and 3 and inflicted grievous injuries on PW.1 as per Ex.P7. But there is no absolute evidence that whether that injuries inflicted over the person of PWs.1 to 3 are the corresponding injuries from M.O.3 – chopper and M.O.4 – long chopper which were alleged to have been used at the time of incident as narrated. But there shall be some discrepancies whether the accused persons used either chopper or sickle in the commission of offence. The said factor has not been established by the prosecution by putting forth worthwhile evidence. Therefore, it requires for intervention.
34. Further it is relevant to note that the criminal law was set into motion by registering case in Crime No.103/2007 based upon the complaint statement as 51 per Ex.P2. PW.1 – Nanjappa who had been shifted to Bidadi Government Hospital and he took the treatment from PW.11 – Raghu Ramaiah. But PW.11 in his evidence states that he provided treatment at around 7.00 AM on 28.02.2007. But the genesis of the criminal prosecution even going through the substance of the FIR or the complaint statement as per Ex.P2 as regards the commission of offence on the aforesaid date and time, there are some discrepancies which cuts the root of the prosecution case and its theory. However, it is the domain vested with the prosecution to establish the guilt of the accused beyond all reasonable doubt. But in the instant case, the prosecution did not facilitate worthwhile evidence and consequently the benefit of such doubt has to be extended to the accused alone which is a settled position of law. Therefore, for the aforesaid reasons and findings, I proceed to pass the following:
52.
ORDERThe appeal preferred by the appellants/accused Nos.1 to 4 and 6 under Section 374 (2) of Cr.P.C. is hereby allowed. Consequently, the judgment of conviction and order of sentence rendered by the trial Court in S.C.No.7/2009 dated 20.04.2011 is hereby set- aside. The accused are acquitted for the offences punishable under Sections 143, 147, 148, 324, 326 r/w 149 of IPC. The bail bonds if any, executed by the appellants/ accused shall stand cancelled. Keeping in view the peculiar facts and circumstances of the case, the fine amount if any, deposited by the appellants/accused shall be returned to them, on proper identification, in accordance with law. Accordingly ordered. Sd/- JUDGE KS/DKB