R1IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE16H DAY OF DECEMBER, 2021 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR CRIMINAL APPEAL No.516 OF2014BETWEEN:
1. Puttasiddamma @ Puttasiddi W/o. Shivalingaiah Aged about 31 years 2. Samandaiah S/o. Late Dadeeraiah Aged about 42 years Both are residents of Talagavadi Village Kirugavalu Hobli Malavalli Taluk – 571401. ...Appellants (By Sri. Kemparaju - Advocate) AND: State of Karnataka By Malavalli Rural Police Station Mandya Rep. by its Public Prosecutor High Court Complex Bangalore – 560 001. ...Respondent (By Sri. Rahul Rai .K - HCGP) 2 This Criminal Appeal filed under Sec.374(2) of Criminal Procedure Code, by the Advocate for the appellant praying to set aside the judgment dated 28.05.2014, passed by I-Addl. District and Sessions Judge, Mandya in S.C.No.50/2013 and acquit the appellants. This criminal appeal coming on for hearing through video conference this day, the court delivered the following:
JUDGMENT
This appeal is directed against the judgment of conviction and order of sentence rendered by the Trial Court in S.C.No.50/2013 dated 28.05.2014 convicting the accused Nos.1 and 2 / appellants herein, for offences punishable under Sections 324 and 342 read with Section 34 of the IPC, 1860. Further, Accused Nos.1 and 2 have been sentenced to pay a fine of Rs.5,000/- each and in default to undergo simple imprisonment for six months for the offences punishable under Section 324 read with Section 34 IPC and they have been further sentenced to pay a fine of Rs.1,000/- each and in default to undergo S.I. for one 3 month for the offences punishable under Section 342 read with Section 34 IPC. This appeal is filed by the appellants seeking for consideration of the grounds urged and consequently to set aside the judgment of conviction and order of sentence rendered by the Trial Court and further seeking acquittal of the accused for the aforesaid offences, for the grounds urged therein.
2. Heard the learned counsel Shri Kemparaju for appellant and so also the learned HCGP for the State. Perused the judgment of conviction rendered by the Trial Court in S.C.No.50/2013 dated 28.05.2014 and so also the evidence of PW-1 to PW-11 inclusive of the documents at Exhibits P1 to P7 and material objects at MO-1 to MO-3.
3. Factual matrix of the appeal is as under: It transpires from the case of the prosecution that on 14.05.2012 at around 8.30 a.m. in Talagawadi village the complainant was said to be proceeding in front of the house of Accused No.1 namely 4 Puttasiddamma. Due to an earlier enmity, Accused Nos.1 and 2 had joined together and Accused No.1 / Puttasiddamma had caught hold of the shirt collar of the complainant Sathisha and dragged him to her house and thus wrongfully restrained him. In the meanwhile, Accused No.2 / Samandaiah is alleged to have assaulted the complainant on his head with means of a bamboo club. Accused No.1 had then brought a plastic rope and had tied the same to his body, with an intention to cause his death. Both Accused Nos.1 and 2 had also told that he has to die in that position itself. But thereafter, on seeing CWs 2 to 5 who had come to rescue the complainant, Accused Nos.1 and 2 had untied the complainant Sathisha. However, Accused Nos.1 and 2 had wrongfully restrained PW-1 Sathisha and also had assaulted him with means of a bamboo club, as a result causing simple injuries. In pursuance of the act of the accused, on filing of a complaint by the complainant, criminal law was set into motion by 5 recording an FIR as per Exhibit P7 for offences under Sections 324 and 342 read with Section 34 of the IPC, 1860. Subsequent to registration of the crime by recording an FIR, criminal law was set into motion and thereafter the I.O. has taken up the case for investigation and conducted thorough investigation and laid the charge-sheet against the accused before the Committal Court whereby the Committal Court had passed an order under Section 209 of the Cr.P.C. by following the provisions of Sections 207 and 208 of the Cr.P.C. Subsequent to committing the case for trial to the Sessions Court, the case in S.C.No.50/2013 has been assigned whereby the charges were framed against the accused for offences punishable under Sections 341 read with Section 34 of the IPC, 1860 and so also charges were framed for offences punishable under Section 308 read with Section 34 of the IPC, 1860. Alternatively, facing of trial for charges framed against them under Section 324 read with Section 34 of the IPC. 6 The accused did not plead guilty but claims to be tried. Accordingly, plea of the accused was recorded. Subsequent to framing of charges, the prosecution had let in evidence by subjecting to examination PW-1 to PW-11 and so also got marked Exhibits P1 to P7 inclusive of MO-1 to MO-3. Subsequent to closure of the evidence on the part of the prosecution, the accused was subjected to examination as contemplated under Section 313 of the Cr.P.C. for enabling the accused to respond to the incriminating statements appearing against him, whereby the accused had declined the truth of the evidence of the prosecution adduced so far. Subsequently the accused were called upon to adduce any defence evidence as contemplated under Section 233 Cr.P.C. But no defence evidence was adduced. Subsequent to closure of the evidence of the prosecution, the Trial Court had heard the arguments advanced by the Public Prosecutor and so also the defence counsel and having been convinced with the 7 evidence let in by the prosecution inclusive of getting marked several documents, held conviction against the accused for offences punishable under Sections 324 and 342 read with Section 34 of the IPC, 1860 and sentenced them to pay fine for the offences as aforesaid. It is this judgment which is under challenge in this appeal by urging various grounds, seeking intervention.
4. Learned counsel for appellants / Accused Nos.1 and 2 has stoutly addressed his arguments by referring to the evidence of PW-1 Sathisha who is a gravamen of the incident and also alleging that he has been inflicted with injuries by accused persons, as contended by the prosecution. But though criminal law was set into motion on receipt of a complaint at Exhibit P1 which bears the signature of the complainant / PW-1, but this PW-1 / Satisha has turned hostile in respect of the allegations made against the accused at Exhibit P1. Hence, his evidence on the part of the prosecution runs 8 contrary to the evidence of PW-2 / Kumara, PW-3 / Jagadeesha who are eye-witnesses relating to the incident narrated by PW-1 who is a gravamen of the incident who filed the complaint at Exhibit P1.
5. Exhibit P4 is the Wound Certificate which bears the signature of the Doctor at Exhibit P4(a). PW-5 is the Doctor who issued Opinion report at Exhibit P5 which bears the signature at Exhibit P5(a). PW-5 was also subjected to examination on the part of the prosecution who issued the Wound Certificate at Exhibit P4 and Opinion Report at Exhibit P5. The Doctor’s evidence runs contrary to the evidence of PW-1 / Sathisha and further contradictory to the evidence of PW-2 / Kumara and PW-3 / Jagadeesha, who are said to be the eye- witnesses on the part of the prosecution and who have given statements before the Investigating Authority during the course of investigation. But in the aforesaid case, PW-6 / Annegowda, is a Head Constable and PW- 7 / M.J.
Lokesh who is an I.O. in part and PW-8 / B. 9 Puttaswami is also an I.O. in part and PW-9 / Mahadevaiah K.M. is a Head Constable, PW-11 / Subbaiah is an I.O. who laid the charge-sheet against the accused are the official witnesses. In all, three Investigating Officers have investigated the case in part. But their evidence on the part of the prosecution runs contrary to the evidence of PW-1 / Sathisha who filed the complaint at Exhibit P1 which was received by the Rural Police, Malavalli and based upon the complaint made by PW-1 injured, criminal law was set into motion. Whereas in the examination-in-chief on the part of the prosecution, PW-1 / Sathisha has clearly stated that he has not given any statement before the Rural P.S., Malavalli and further, he has specifically admitted that he was unable to spell out the exact date and month of the alleged incident narrated at Exhibit P1. Therefore, the incident narrated in his complaint at Exhibit P1 and also fulcrum of the mahazar drawn by the I.O., creates some sort of doubt about the theory put 10 forth by the prosecution as to whether the incident had taken place as alleged in his complaint at Exhibit P1. If really the incident had taken place, he would have stated before the Trial Court that the accused had tied the injured with a plastic rope which is marked as MO- 2. On that ground alone, it requires for intervention of the impugned judgment of conviction rendered by the Trial Court. If not, the accused who are the gravamen of the accusation would be the sufferer and so also it would result in a miscarriage of justice.
6. The second limb of arguments advanced is that PW-1 / Satisha who is the injured has given a go-by to the version of his complaint at Exhibit P1 and even though this witness has been subjected to cross- examination, nothing worthwhile has been elicited by the prosecution to believe his story or the allegation at his complaint at Exhibit P1 against Accused No.1 who is alleged to have dragged him by holding his shirt collar to her house and in the meanwhile, Accused No.2 who 11 is a relative of Accused No.1 is alleged to have assaulted by MO-2 bamboo club by choosing his head, as a result causing some bleeding injuries. Accused No.1 is alleged to have tied the body of PW-1 / Satisha with means of MO-1 plastic rope and tied him to the pole with an intention to cause his death. But he has not at all spell out all these stories narrated in his complaint at Exhibit P1 and hence, he has given a go-by to the version of his complaint at Exhibit P1 and the narration of the incident at Exhibit P3 of the mahazar and even as regards infliction of injuries over his person which is indicated at Exhibit P4. Even he has given a go-by as regards the Opinion Report issued by the Doctor at Exhibit P5 relating to the injuries inflicted over his person. In spite of the same, the Trial Court has failed to appreciate the evidence on record in a proper perspective and has erroneously come to the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt. 12
7. PW-1 who is an injured and also being the author of the complaint at Exhibit P1, has admitted in his cross-examination that he was in the habit of consuming alcohol, that is arrack. But this accused who was frequently visiting his in-laws house to see his son, was in the habit of eve-teasing Accused No.1 / Puttasiddamma. The complainant was in the habit of quarrelling with his wife Lakshmi, who died six years prior to the incident. When his wife was alive, he was always quarrelling with her and Accused No.2 / Samandaiah being a neighbour, used to advise him not to quarrel with his wife or assault her. Therefore, an enmity had developed between Accused No.2 and PW-1 / Sathisha and PW-1 had filed a complaint as a result of which criminal law was set into motion by roping that accused as well as Puttasiddamma. Accused No.2 is said to have convened a Panchayath relating to the incident of eve-teasing Accused No.1 / Puttasiddamma and there was also some quarrel in that regard. It is 13 due to these reasons that Sathisha is said to have filed a false complaint against the accused persons roping them as accused. The complaint has been filed with due deliberation and discussion before implicating those appellants / accused before the Trial Court. But the Trial Court has failed to appreciate the same relating to previous enmity which was prevailing between Accused No.2 / Samandaiah and PW-1 / Sathisha. Therefore, in this appeal, it requires for re-appreciation of the evidence available on record. If not, the accused / appellants herein, would be the sufferer.
8. PW-2 and PW-3 are eye-witnesses relating to the incident narrated in the complaint at Exhibit P1. Even the mahazar was drawn by the Investigating Agency on 14.05.2012 in between 1.30 p.m. to 2.30 p.m. but there was some contradiction. When PW-3 was subjected to examination on the part of the prosecution, he had stated that he went along with PW- 2 / Kumara to the alleged scene of crime at around 7.00 14 a.m. But in his cross-examination, he has clearly admitted that at the time of the alleged incident, he was present near at M.M. Medical Store and it was of 500 ft. distance to the alleged scene of crime. But PW-2 / Kumara gave a complaint to the police relating to PW-1 / Satisha having been tied by accused persons. PW-2 has stated in his evidence that at the time of the alleged incident, there were in all 20 to 30 persons being public who had gathered in the village. But respondent / police have not taken any statement from them relating to the incident which is alleged to have occurred on PW- 1 / Satisha and there are no independent witnesses other than the relatives of PW-1. But, the evidence of PW-2 and PW-3 requires to be re-appreciated in this appeal. If not, the accused who is a gravamen of the accusation would be the sufferer and more so, there shall be some miscarriage of justice. But PW-3 even though he has been subjected to examination, he had not informed of the incident to the Malavalli Rural P.S. 15 It is very much clear that the said evidence has not been appreciated by the Trial Court but erroneously come to the conclusion holding that the prosecution has proved the guilt of the accused beyond all reasonable doubt.
9. PW-5 / Dr. Vineetha, had subjected to examination PW-1 / Sathisha and issued the Wound Certificate at Exhibit P4 and also Opinion Report at Exhibit P5. But in her evidence, she has stated that the injuries inflicted over PW-1 were simple in nature and further that the injured PW-1 Sathisha was brought to her by PW-2 / Kumara and PW-3 / Jagadeesha. On the contrary, the said Kumara / PW-2 and Jagadeesha / PW-3, in their evidence on the part of the prosecution, have stated that the police had admitted the injured to the hospital. Hence, contradiction arises in between the statements of PW-2 and PW-3 who are independent witnesses and more so, the evidence of PW-5 / Doctor who had subjected the injured to examination and issued the Wound Certificate at Exhibit P4 and so also 16 the Opinion Report at Exhibit P5. PW-5 being the Doctor even though was subjected to examination and cross-examination, during the course of cross- examination, she has admitted that if a person falls down and comes into contact with an hard object, injuries would be inflicted as indicated in the Wound Certificate. Even if the person fell down from a tree, the injuries inflicted on the head part would also have been caused. These are all the important evidence on the part of the prosecution which has not been appreciated by the Trial Court in a proper perspective.
10. Further, the evidence of PW-1, PW-2 and PW-3 runs contrary to the evidence of PW-6 and PW-9 being official witnesses. PW-6 and PW-9 have stated in their evidence that they went to the alleged scene of crime on the instruction given by the PSI of Malavalli Rural P.S. at around 10.45 a.m. But PW-2 and PW-3 have stated in their evidence that the police had come to the alleged scene of crime at around 7.00 a.m. Therefore, there are 17 some contradictions in the evidence of PW-6 and PW-9 and there are clouds of doubt in the theory put forth by the prosecution. Despite of it, the Trial Court has given more credence to the official witnesses and so also to the evidence of PW-1 / Sathisha, who has given a go-by to incident narrated in his complaint at Exhibit P1 itself. The Trial Court has lost sight of these inconsistencies and has not appreciated the evidence on record in a proper perspective. Therefore, under this appeal, it requires for re-appreciation of the evidence inclusive of the material documents which have been got marked on the part of the prosecution, such as the complaint at Exhibit P1, the mahazar at Exhibit P3 and the Wound Certificate at Exhibit P4 and so also the evidence of PW-6 and PW-9 who are the official witnesses. All their evidence run contrary to the evidence of PW-1 / Sathisha. On all these premise, learned counsel for appellants seeks for intervention by considering the grounds urged therein and 18 consequently to set aside the judgment of conviction and order of sentence rendered by the Trial Court in S.C.No.50/2013 and thereby acquit the appellants for offences under Sections 324 and 342 read with Section 34 of the IPC, 1860.
11. On the other hand, learned HCGP for the State has taken me through the evidence of PW-1 / Sathisha who is the injured. It is contended that though there are inconsistencies in the evidence of PW-1 and so also the evidence of PW-2 and PW-3 who are eye-witnesses on the part of the prosecution, and merely because PW- 1 / Sathisha did not support the case of the prosecution absolutely, it cannot be said that the entire case of the prosecution should be brushed aside. The incident had taken place on 14.05.2012 at around 8.30 a.m. at Talagawadi village in front of the house of Accused No.1 Puttasiddamma and Accused No.2 / Samandaiah is none other than the relative of Accused No.1. Accused No.1 Puttasiddamma had caught hold of the shirt collar 19 of PW-1 / Sathisha and had dragged him nearby her house and thereby Accused No.2 being her relative, had assaulted him by means of a bamboo club on his head. As a result of that, he had sustained with injuries and had taken treatment with the Doctor examined as PW-5, who issued the Wound Certificate at Exhibit P4 and also Opinion Report at Exhibit P5. Accused Nos.1 and 2 had inflicted injuries over PW-1 / Sathisha, which is clearly indicated at Exhibit P4 of the Wound Certificate and more so, the accused had wrongfully confined him by tying him by means of MO-1 / plastic rope.
12. The prosecution has subjected to examination PW-1 Sathisha who is the injured. In support of the case, PW-2 and PW-3 were examined and PW-5 Doctor had subjected PW-1 to examination and issued Wound Certification and Opinion report. So also, the evidence of PW-7 / M.J.
Lokesh, PW-8 / B. Puttaswami and PW- 11 / Subbaiah, the I.O. who laid the charge-sheet against the accused and conducted spot mahazar at 20 Exhibit P3 and secured the Wound Certificate at Exhibit P4 and the Opinion Report at Exhibit P5. But the accused is alleged to have tied PW-1 / Sathisha with means of MO-1 / plastic rope and also assaulted with bamboo club marked at MO-2. As a result of the assault made on Sathisha, it had caused bleeding injuries. The blood had come into contact with his shirt, which is marked as MO-3. These are the evidence let in by the prosecution and nothing worthwhile has been elicited even though these witnesses were subjected to cross-examination. PW-2 and PW-3 who are the eye-witnesses on the part of the prosecution have stated the history of the incident and also infliction of injuries over PW-1 / Sathisha, whereby Accused No.1 had dragged him by holding his shirt collar and Accused No.2 being her relative, had assaulted PW-1 with means of MO-2 / bamboo club and also had tied him to the pole in front of the house of Accused Nos.1 and 2 and had assaulted him on his head, as a result of 21 which he had gone semiconscious. Thereafter, the said PW-1 had been untied by rescuing him by the Malavalli police and sent him to hospital at around 11 to 12 noon and thereby recorded the statement of the injured and also received the complaint at Exhibit P1, wherein the accused had caused the injuries inflicted on his person and also wrongfully confined him, which has been established by the prosecution beyond all reasonable doubt. Therefore, the learned HCGP contends that it does not arise to call for interference, as there are no warranting circumstances arising for interference. On all these premise, learned HCGP for the State seeks for dismissal of this appeal as being devoid of merits.
13. In the context of contentions advanced by learned counsel for appellants and counter contentions made by the learned HCGP for the State relating to infliction of injuries over the person of PW-1 / Sathisha which is indicated at Exhibit P4 of the Wound 22 Certificate, it is required to examine the Wound Certificate issued by PW-4 Doctor who had given treatment to him and noticed some injuries inflicted over his person such as,
1) A lacerated wound on the occipital region of 4 cms in length 2 cms in breadth, wedge shaped, bleeding present.
2) A rope mark on the back below the right scapula upto the vertebral column 10 x 1 cm. The Doctor who had given the opinion report has opined that the above injuries are simple in nature, age of the wound within 24 hours. Accordingly, issued the Wound Certificate on 13.06.2012 in respect of Mr. Satish S/o. H. Dasaiah with the history of assault by Samandaiah and Puttasiddamma as on 14.05.2012 at around 8.00 a.m. He was tied with a rope around his neck and back and legs, but PW.1-injured did not support the prosecution theory absolutely as narrated in his complaint at Exhibit P1. 23
14. PW-5 has been subjected to examination on the part of the prosecution and issued the Wound Certificate at Exhibit P4 opining that Injuries 1 and 2 were simple in nature. Subsequent to giving treatment to the injured, the Doctor had issued Opinion Report at Exhibit P5. This opinion report had been issued based upon the requisition by the PSI of Rural P.S., Malavalli. Exhibit P6 is the FSL report issued by the Chemical Examiner of Regional Forensic Science Laboratory, Mysuru. Exhibit P6 of the FSL report states that the articles pertaining to the case in Cr.No.75/2012 of Malavalli Rural P.S., for offences under Sections 308, 342 read with Section 34 of the IPC, 1860 were subjected to chemical examination. The description of the articles are,
1) one Donne (club),
2) Rope pieces – 2 in number
3) One shirt. The exhibits for serology were,
4) Cuttings from rope pieces
5) Cuttings from shirt, which are contrary to the evidence of PW.1-injured and the evidence of PW.2 and PW.3. 24
15. The report in this regard has been issued by the Chemical Examiner after subjecting to examination relating to the blood stain on the articles. Presence of blood was detected in Item Nos.2 and 3 but presence of blood was not detected in Item No.1. But Item Nos.2 and 3 were stained with human blood. As regards Serology report, cuttings and scrapings of the blood stained exhibits were subjected to serological analysis. The origin was determined by the gel diffusion method, cross over electrophoresis and blood grouping was determined by the absorption elution method. This evidence in respect of Exhibit P4 / Wound Certificate and so also the Opinion Report at Exhibit P5 inclusive of the FSL Report at Exhibit P6. But the charges were framed by the Trial Court against the accused for offences under Sections 341 read with Section 34 of the IPC, 1860. However, there are clouds of doubt in the evidence of the prosecution. 25
16. Secondly, charges were framed for offences under Section 308 read with Section 34 of the IPC but alternatively, charges were framed against the accused Nos.1 and 2 for offences under Section 324 read with Section 34 of the IPC. However, Section 308 of IPC relates to culpable homicide. But at this juncture, it is relevant to refer to Chapter XVII of the Code of Criminal Procedure, 1973, in respect of charge.
17. Section 211 Cr.P.C. relates to contents of charge, which contains clauses (i) to (iv) which reads thus: (i) Section 212 relates to particulars as to time, place and person; (ii) Section 213 relates as to when manner of committing offences must be stated; (iii) Section 214 relates to words in charge taken in sense of law under which offence is punishable; (iv) Section 218 relates to separate charges for distinct offences. 26 Whereas under this provision, clause (i) states that, for every distinct offence of which any person is accused, there shall be a separate charge and every such charge shall be tried separately.
18. In the instant case, particularly charge was framed under Section 341 read with Section 34 of the IPC relating to wrongful confinement of the injured. Secondly, the charges were framed under Section 308 read with Section 34 of the IPC and alternatively the charges were framed under Section 324 read with Section 34 of the IPC, 1860. If an accused is charged of major offences such as offences under Section 308 read with Section 34 IPC, and thereafter on the basis of facts if it is found that the accused is not guilty of the alleged offences, the domain is vested with the Trial Court, to charge the accused with minor offences. But in the instant case, the accused were charged with major offences under Section 308 read with Section 34 of the 27 IPC relating to attempt to commit culpable homicide and alternatively charge was framed under Section 324 read with Section 34 of the IPC by way of clubbing of charge. Therefore, it requires for looking into the concept of Section 299 of the IPC, 1860 in respect of culpable homicide. Explanations 1 to 3 of Section 299 of IPC reads thus: Explanation 1.—A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 2.—Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment of the death might have been prevented. 28 Explanation 3.—The causing of the death of child in the mother’s womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.
19. However, there is distinction between culpable homicide and murder. But culpable homicide is the genus and murder is its species and all murders are culpable homicides but all culpable homicides are not murders. This issue was extensively addressed by the Hon’ble Supreme Court in the case of RAMPAL SINGH vs. STATE OF UTTAR PRADESH (2012) 8 SCC289 The presumption regarding intention or knowledge is an important element relating to culpable homicide or even for offences under Section 308 of the IPC, 1860. But in the instant case, the charges were framed under Section 308 read with Section 34 of the IPC and alternatively, Section 324 read with Section 34 of the IPC. But 29 intention of the accused must be judged not in the light of the actual circumstances, but in the light of what is supposed to be the circumstances. Therefore, the accused cannot be convicted even if culpable homicide has been lugged against the accused by invoking the provisions of Section 308 of the IPC, 1860.
20. But in the instant case, the established involvement of the accused in the incident narrated in the complaint at Exhibit P1 filed by the injured Sathisha and based upon the complaint, criminal law was set into motion by registering the crime and also recording an FIR. In his complaint, he has narrated that Accused No.1 / Puttasiddamma had held his shirt collar while he was proceeding in front of her house and dragged the injured Sathisha near her house and then accused No.2/Samandaiah, her relative is said to have assaulted him with means of MO-2 on his head, as a result, he sustained injuries as indicated at Exhibit P4 of the Wound Certificate issued by PW-5/Doctor and so also 30 issued the Opinion Report as per Exhibit P5 relating to corresponding injures by making use of MO-2 Bamboo club.
21. PW-1 Satisha who is an injured and also author of the complaint at Exhibit P1, did not support the case of the prosecution and he had given a go-by to the versions of his statements at Exhibit P1. But the Trial Court had convicted the accused by giving more credence to the evidence though his evidence runs contrary to the evidence of PW-2 and PW-3 who are eye- witnesses on the part of the prosecution. But in totality of consideration of the evidence of PW-1 and so also the evidence of PW-2 and PW-3, their evidence runs contrary to each other and further contrary to the evidence of PW-6 / Annegowda who is a Head Constable and PW-7 / M.J.
Lokesh who is an I.O. in part, PW-8 / B. Puttaswami who is also an I.O. in part and PW-11 / Subbaiah who is the I.O. who laid the charge-sheet against the accused. 31
22. In the instant case, in all, three Investigating Officers have investigated the case and all their evidence appears to be camouflaged and also somersault of the theory put forth by the prosecution. Therefore, under this appeal, it requires for re-appreciation of the evidence. If not, the accused would be the sufferer and also it would lead to a miscarriage of justice.
23. Whereas, Section 134 of the Indian Evidence Act, 1872, no particular number of witnesses shall in any case be required for the proof of any fact. Criminal prosecution is launched against the accused and criminal law is set into motion by recording an FIR on receipt of a complaint under Section 154 of the Cr.P.C. Subsequent to registration of the crime, it is the domain vested with the Investigating Authority to take up the case for investigation under Section 173(2) Cr.P.C. and to investigate the case thoroughly and lay a charge- sheet against the accused. Subsequent to laying of the charge-sheet, the domain is vested with the Trial Court 32 to proceed in accordance with the relevant provisions of the Cr.P.C. and so also the relevant provisions of the Indian Evidence Act, 1872. But keeping in view Section 134 of the Indian Evidence Act, it is well-known principle of law 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. This was extensively addressed by the Hon’ble Supreme Court in the case of 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 24. In the instant case, the injured PW-1 Satisha is the author of the complaint at Exhibit P1 and based 33 upon his complaint, criminal law was set into motion by registering a crime and also recording an FIR. The FIR was recorded as indicated in the substance of the allegations made against the accused. But PW-1 Sathisha in the instant case, has given a go-by to the versions of his statements and has turned around the allegations made against the accused in the complaint. Hence, his evidence does not support the evidence of the independent witnesses namely PW2 and PW3 and even the official witnesses.
25. But 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. The domain is vested with the Trial Court to appreciate the evidence under Section 3 of the Indian Evidence Act, 34 1872. 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 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 AIR2013SC1204in the case of Laxmibai (Dead) through LRs vs. Bhagwantbura (Dead) through LRs.. 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. 35
26. 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 reliance of AIR2003SC854in the case of Lallu Manjhi v. State of Jharkhand.
27. But PW-1 Sathisha who was by avocation an autorickshaw driver, is said to have indulged in eve- teasing Puttasiddamma / accused No.1. But the said PW-1 Sathisha was said to be frequently quarrelling with his wife Lakshmi, who had died six years prior to the incident. But since his son aged 14 years was in the care and custody of his in-laws, the said Sathisha used to frequently visit his in-laws house at Talagawadi in Malavalli Taluk. The said Puttasiddamma was 36 residing in the neighbouring house of his in-laws. Hence, PW-1 Sathisha is said to have cultivated the habit of eve-teasing Puttasiddamma regularly, on his frequent visits to Talagawadi, particularly whenever she used to go out of her house to fetch water or to fetch any coolie work to eke out her livelihood. It is stated that previously when Sathisha’s wife was alive itself, Accused No.2 / Samandaiah who was the relative of Accused No.1 / Puttasiddamma used to advise Sathisha not to quarrel with his wife Lakshmi or assault her. In that regard, there was always an ill-will prevailing between the complainant Sathisha and Accused No.2 / Samandaiah. Thus, a prudent man can infer that there was some ill-will or enmity between PW-1 / Sathisha and Accused No.2 / Samandaiah who is none other than a relative of Accused No.1 / Puttasiddamma.
28. However, in the instant case, the Trial Court has given more credence to the evidence of PW-2 and 37 PW-3 who are eye-witnesses on the part of the prosecution. But their evidence runs contrary to the evidence of PW-1 Sathisha and further contradictory to the evidence of PW-5 doctor. Therefore, in this appeal, it requires for re-appreciation of the evidence facilitated by the prosecution. If not, certainly there shall be a miscarriage of justice. But appeal is nothing but continuity of proceedings which requires re-appreciation of the entire evidence available on record, both oral and documentary. If not, the accused who is a gravamen of the accusation would be the sufferer.
29. Accordingly, under this appeal, it requires for intervention by considering the bone of contention made by the counsel for appellants. Keeping in view the grounds urged in this appeal, it is opined that the appellants / accused deserve to be acquitted. Accordingly, I proceed to pass the following:
38.
ORDERThe appeal preferred by appellants / accused Nos.1 and 2 under Section 374(2) Cr.P.C. is hereby allowed. Consequently, the judgment of conviction and order of sentence rendered by the Trial Court in S.C.No.50/2013 dated 28.05.2014 is hereby set aside. Consequent upon setting aside the judgment of conviction rendered by the Trial Court, Accused Nos.1 and 2 are hereby acquitted for offences punishable under Sections 324 and 342 read with Section 34 of the IPC, 1860. If any bail bond has been executed by appellants / Accused Nos.1 and 2, the same shall stand cancelled. If the fine amount has already been deposited by the appellants, the same shall be returned to the respective appellants, on proper identification in accordance with law. Accordingly Ordered. Sd/- JUDGE KS