Judgment:
R1IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE28H DAY OF JANUARY, 2022 PRESENT THE HON’BLE MR.JUSTICE K.SOMASHEKAR AND THE HON’BLE MR. JUSTICE P.N.DESAI CRIMINAL APPEAL No.1568 OF2016BETWEEN: State of Karnataka By Kavoor Police Station Mangaluru, D.K., Rep. by SPP High Court Building Bengaluru – 560 001. ...Appellant (By Sri. Rahul Rai K - HCGP) AND:
1. Sri. Ganesha S/o. Nagesh Shetty Aged about 26 years R/at: Kelarayikodi I-Cross, Vamanjooru Thiruvailu Village Mangaluru Taluk-575028.
2. Sri. Loyd Montheiro S/o. Late Walter Montheiro Aged about 25 years R/at: Keeram House Moodushedde Post 2 Vamanjooru Mangaluru Taluk – 575028.
3. Sri. Bipin S/o. Ganesha S Aged about 27 years R/at : Thiruvail House Moodushedde Post Vamanjooru Mangaluru Taluk – 575028. ...Respondents (By Sri. P.P. Hegde - Sr. Counsel for Sri. Venkatesh Somareddy - Advocate) This Criminal Appeal filed under Sec.378(1) and (3) of Criminal Procedure Code, by the Advocate for the appellant praying to (i) grant leave to appeal against the judgment and order of acquittal dated 06.04.2016 passed n Sessions Case.No.169/2013 on the file of Prl. Sessions Judge, D.K., Mangaluru acquitting the Respondents – Accused Nos. 1 to 3 for offences punishable under Sections 504, 307, 324 r/w 34 of IPC; (ii) set aside the judgment and order of acquittal dated 06.04.2016 passed in Sessions Case No.169/2013 on the file of the Prl. Sessions Judge, D.K., Mangaluru as acquitting Accused/respondents No.1 to 3 for the offence punishable under Sections 504, 324, 307 r/w 34 of IPC, by allowing this appeal; (iii) convict and sentence the accused / respondent Nos. 1 to 3. 3 This criminal appeal coming on for hearing through video conference this day, K. Somashekar .J delivered the following:
JUDGMENT
This appeal is preferred by the State challenging the acquittal judgment rendered by the trial Court in S.C.No.169/2013 dated 06.04.2016 whereby acquitting the accused for the offence punishable under Sections 504, 324, 307 r/w 34 of the Indian Penal Code, 1860. In this appeal the Appellant/State is seeking to set- aside the judgment of acquittal rendered by the Court and to convict the accused for the aforesaid offences which are charged against them amongst the various other grounds urged in this appeal.
2. Heard learned HCGP for Appellant / State who is present before the Court physically and learned Senior counsel Sri P.P.Hegde for respondents / accused who is appearing through video conferencing. Perused 4 the judgment of acquittal rendered by the trial Court in S.C.No.169/2013.
3. The factual matrix of the appeal are as under: It is transpired in the case of the prosecution that on 23.10.2012 accused Nos.1 to 3 with common intention to insult and to provoke breach of peace had questioned CWs.1 to 3 when they were pasting the posters of a neighbouring State School at Moodshedde area at about 11.45 p.m. and abused them in filthy language. As a result of exchange of words in terms of abusing, accused Nos. 1 to 3 alleged to have assaulted CW.1 with means of knife on his head and accused Nos.2 and 3 with wooden club and reaper over his person. In pursuance of the act of the accused on filing of a complaint by PW.1, criminal law was set into motion by registering the case in Crime No.157/2012 and whereby the FIR as per Ex.P14 came to be recorded. Whereas in the complaint made by PW.1 – 5 Hyder Ali who is the injured and he has narrated in his complaint that accused Nos.1 to 3 said to have been assaulted over his person with means of knife and also with means of wooden club and wooden reeper as a result caused injuries over his person. Accordingly, PW.12 had given treatment to the injured and issued wound certificate as per Ex.P16.
4. Subsequent to registration of the crime by the police having jurisdiction, FIR as per Ex.P14 came to be recorded in Crime No.157/2012 by the Kavoor Police Station, D.K.Mangaluru. Subsequent to registration of crime and so also, criminal law was set into motion that PW.15 being the Investigating Officer took up the case for investigation and the investigation was done thoroughly and charge sheet came to be laid against the accused before the Court having jurisdiction. Thereafter the Committal Court committed the case to the Court of Sessions for trial by passing an order under 6 Section 209 of Cr.P.C. by following the provisions under Sections 207 and 208 of Cr.P.C.
5. Subsequent to committing the case to the Court of Sessions for trial that the accused were secured for facing of a trial and charges were framed by the trial Court. After hearing the arguments advanced by the prosecution and the defence counsel, the trial Court having found prima-facie materials on record against the accused, consequently, the charges were framed against the accused under Sections 504, 324, 307 r/w 34 of IPC. The charges were read over to the accused in the language known to them and whereby the accused did not pleaded guilty but claimed to be tried. Accordingly, the plea of the accused was recorded separately.
6. Subsequent to framing of charge that the prosecution was subjected to examination in all PWs.1 to 15 and also got marked Exs.P1 to P22 and also, 7 M.O.1 to M.O.6. Subsequent to closure of evidence of the prosecution that the accused were examined as required under Section 313 Cr.P.C. for enabling them to answer incriminating evidence appeared against the accused whereby the accused denied the truth of the evidence of prosecution witnesses. Subsequent to recording the incriminating statement appeared against the accused that the accused did not come forward to adduce any defence evidence as contemplated under Section 233 of Cr.P.C.
7. Subsequent to closure of evidence on the part of the prosecution and so also on the part of the defence in accordance with relevant provision of Code of Criminal Procedure and so also, under the Indian Evidence Act that the trial Court heard the arguments advanced by the prosecution and so also, counter made by the defence counsel and after scrutinizing the evidence of PWs.1 to 15 and mainly on the evidence of PW.1 – 8 Hyder Ali who is an injured relating to the wound certificate at Ex.P16 and so also evidence of PW.3, Abdul Jaleel and PW.4 – Iqbal, who had partly supported the case of the prosecution. This submission made by learned HCGP for State and wherein he has addressed his arguments based upon the grounds urged in this appeal. However, the trial Court having gone through the evidence of PWs.1, 3 and 4 inclusive of evidence of PW.12 being the Doctor who subjected to examination and issued wound certificate at Ex.P16 and PW.13 being the Scientific Officer at RFSL, Mangaluru who issued FSL report at Ex.P19 for having subjected to chemical / scientific examination of M.O.1 to 6. M.O.4 is the wooden club, M.O.5 is the wooden reaper and M.O.6 is the knife. All these close scrutiny was made by the trial Court by referring the aforesaid evidence on the part of the prosecution and having been convinced that the prosecution did not come forward to facilitate the worthwhile evidence and rendering the acquittal 9 judgment in S.C.No.169/2013 dated 06.04.2016. It is this judgment which has been challenged under this appeal by urging various grounds.
8. Learned HCGP for State in this appeal has taken me through the evidence of PW.1 – Hyder Ali who is an injured relating to issuance of wound certificate at Ex.P16 by PW.12 being the doctor and PW.13 being the Scientific Officer RFSL who issued report at Ex.P19. PW.1-Hyder Ali is the injured and he has supported the case of the prosecution, even according to the complaint allegations made by him against the accused and so also, the accused picked up quarrel with him by using the knife, wooden club and wooden reaper. However, the accused have committed the offence and also attacked PW.1 with the aforesaid material objects and as a result of that they sustained injuries over his person as per Ex.P16 wound certificate issued by PW.12. But the wound certificate indicates injury Nos.1 10 to 3 are simple in nature. Whereas, PW.1 – Hyder Ali who is the injured in respect of sustaining the injuries over his person which is indicates at Ex.P16 of the wound certificate but the trial Court did not appreciate the evidence of PW.1 and so also, the evidence of PWs.3 and 4. Therefore, in this appeal it requires for revisiting the impugned judgment of acquittal rendered by the trial Court and so also, re-appreciation of evidence as where the trial Court misdirected the evidence as well as the theory put forth by the prosecution by subjecting to examination of all those material witnesses.
9. Learned HCGP placed reliance on the decisions of the Hon’ble Supreme Court in Bhajan Singh @ Harbhajan Singh and others vs. State of Haryana wherein it was held that the evidence of an injured witness comes with a built in guarantee of his presence at the scene of crime and it is most unlikely that an injured will spare his actual assailants in order to 11 falsely implicate someone else. Further, it is contended that the oral testimony of the injured witness has greater evidentiary value. In State of Karnataka, Hassan City Police vs. Lokesh and others, wherein it is held that the panchanamas relied upon by the prosecution can be proved through the evidence of Investigating Officer even when the panchas are not available or unreliable. Further, in Boraiah @ Pujari Boraiah vs. State, the High Court of Karnataka has held that the official Act of the police have been regularly performed and the same is reliable. It is for the accused to prove the said evidence as unreliable. These are all the grounds that have been urged in this appeal at paragraph 9 of the appeal memorandum and more so, the ingredients of Sections 504, 307 and 324 of IPC has been established by the prosecution by subjected to examination PW.1 who is the injured and whereby assaulted by the accused on 23.10.2012 at about 11.45 p.m. with an intention to take away the life of injured 12 PW.1. These are all the evidence put forth on the part of the prosecution, but the trial Court did not appreciate the evidence in a proper perspective manner. Therefore, in this appeal it requires for revisiting in terms of re- appreciation of evidence, if not, there shall be miscarriage of justice. On these premises seeking to allow the appeal by consideration of the grounds as urged and consequently, set-aside the acquittal judgment rendered by the trial Court in S.C.No.169/2013 dated 6.4.2016 and to held conviction for the offence punishable under Sections 504, 324 and 307 of IPC, 1860.
10. Learned Senior Counsel Sri P.P.Hegde has countered to the arguments of learned HCGP for State even by urging various grounds and even by referring to various decisions as urged in this appeal. PW.1 – Hyder Ali is the injured who is the eye witness and who has given evidence and spoken about the incident narrated 13 in the complaint and even the narration of the incident in FIR at Ex.P14 registered by Kavoor Police Station. But the trial Court has elaborately discussed about the evidence of PW.1 and also the role of each one of the accused alleged to have been committed the offence and also abusing PW.1 in a filthy language. But PWs.2 and 3 were also present along with PW.1 and they were about to pasting the posters and assaulted with means of Talwar in terms of knife and also wooden club and wooden reaper which were marked as MOs.4 to 6. M.O.4 is a knife and it is not a talwar, and talwar and knife are different objects. This observation is made by the trial Court on scrutinizing the evidence of PW.1. The wound certificate at Ex.P16 has been issued by PW.12 being a Doctor at SCS Hospital, Mangaluru. According to him PW.1 was brought to the hospital by his father P.W.6 with a history of assault by group of people with swords and rods. But there is no consistent evidence even for subjected to examination of PWs.1 to 14 3 inclusive of PW.4. But PW.1 who is the injured tried to justify himself that M.O.4 as a Talwar and it can be called as knife also. But the trial Court observed that if we look at M.O.4, it cannot be referred to as a talwar. Moreover, there is no reason as to why either PW.1 the injured or PW.6 father of the injured have stated before the Medical Officer at SCS Hospital, Mangaluru, that PW.1 was assaulted by a group of people. But the accused have been lugged in the alleged crime in Crime No.157/2012 registered by Kavoor Police Station.
11. PW.11 – Sajuddeen has been examined on the part of the prosecution and he did not support the case of the prosecution the portion of his statement was got marked as per Ex.P15(a). But his evidence runs contrary to the evidence of PWs.1 and 2 and so also, runs contrary to the evidence of PW.3 and PW.4. But these PWs.3 and 4 were also assaulted with means of M.O.4, wooden club, M.O.5, wooden reaper and M.O.6 15 is the knife alleged to be used by accused and causing injuries over the person of PW.1. But at a cursory glance of the evidence of these witnesses, prosecution did not facilitate the worthwhile evidence and more so, the trial Court had scrutinized entire evidence and found that there are some materials contradiction in the evidence let in by the prosecution and came to the conclusion that the prosecution has not proved the guilt of the accused beyond reasonable doubt. If the theory of the prosecution is taken into consideration, doubt will arise in the mind of the Court. When the doubt arises, the benefit of doubt it always accrues on the part of the accused as wherein prosecution did not facilitate the worthwhile evidence with beyond all reasonable doubt to secure conviction even for infliction of injuries over the person of PW.1 with means of M.O.4 to 6 which were recovered by the Investigating Officer during the course of investigation. This recovery has been made at the instance of accused No.1 it is a seizure mahazar and 16 noting of topography of scene of crime and even the spot mahazar. But there is no worthwhile evidence that has been facilitated by the prosecution to secure the conviction. Even accused No.1 has given his voluntary statement as per Ex.P1 and this mahazar has been drawn by the Investigating Officer – PW.15 during the course of investigation and mahazar at Ex.P12 has been drawn and for recovery of weapons as per M.O.4 to 6 but no reliable evidence has been let in by the prosecution. All these evidence has been appreciated by the trial Court in a proper perspective manner and rightly come to the conclusion and moreover, there is no perversity, absurdity in the appreciation made by the trial Court. Therefore, under this appeal it cannot arise for dwelling into detail and so also, for revisiting the entire evidence, whereby the trial has rightly come to the conclusion, if the theory of prosecution is taken into consideration, reasonable doubts will crop up in the mind of the court which are not expelled by the 17 prosecution. Consequently, learned senior counsel for respondents / accused seeking for dismissal of the appeal being devoid of merits and to confirm the judgment of acquittal rendered by the trial Court.
12. It is in this context of the contention taken by learned HCGP by referring to each one of the grounds urged in this appeal but mainly at paragraph No.9 of the appeal relating to referring the reliance of the Hon’ble Supreme Court and the same has been stated in the body of the judgment rendered by the trial Court. The prosecution case has been revolving around the evidence of PW.1 – Hyder Ali who is an injured and he has given complaint as per Ex.P1 and the complaint has been received by PW.15 – Narasimha Murthy who is the investigating officer and based upon his complaint the criminal law was set into motion by registering the case in Crime No.157/2012 by the Kavooru Police Station. Subsequent to registration of the crime and the criminal law was set into motion that PW.15 who visited the 18 scene of crime and drew spot mahazar as per Ex.P2 and subscribed signatures of PW.2, 4 and 11. Subsequently, he drew the map of scene of crime at Ex.P3 and it bears the signature of PW.2, 4 and 11 as per Exs.P3(a), P3(b) and P3(c).
13. PW.2 – Hasan Ali has been subjected to examination and whereby he has given statement during the course of investigation before the investigating agency. But he did not withstood the version of his statement. Consequently, his statement has been marked as Ex.P5 and so also, further statement of PW.2 at Ex.P6. PW.3 – Abdul Jaleel had also given statement before the investigating officer during the course of investigation and he did not withstood the version of his statement and consequently the portion of his statement has been got marked at Ex.P7 and even further statement was got marked at Ex.P8. PW.4 – Iqbal was also subjected to examination 19 and he did not withstood his version and his statement has been got it marked at Ex.9. PW.5 – Razak has also been subjected to examination and he did not completely supported the case of prosecution and consequently portion of his statement has been got it marked at Ex.P10 and further portion is marked as Ex.P10(a). PW.6 – Usman was also subjected to examination on the part of the prosecution and he has given statement before the investigating officer and he did not completely supported the case of the prosecution and portion of his statement is marked at Ex.P11. Ex.P12 is the seizure mahazar drawn by the investigating officer on 24.10.2012 whereby subscribed signatures of PW.7, P.14 and PW.15 as per Exs.P12(a), P12(b) and P12(c). However, at a cursory glance of voluntary statement of accused No.1 and so also, fulcrum of Ex.P12, seizure mahazar and whereby subscribing signature of accused No.1 and his signature has been obtained by PW.15 being an investigating 20 officer at Ex.P12 and having seized M.O.4, wooden club, M.O.5, wooden reaper and M.O.6, knife which were alleged to used by the accused for commission of offence. But it is contrary to the relevant provisions of Code of Criminal Procedure inclusive of relevant provisions of Indian Evidence Act, 1872 to obtain the signature of the accused on the mahazar which has been conducted by the Investigating Officer.
14. PW.6, Usman is the father of PW.1 who is the injured and he has stated in his evidence that he received information that PWs.1 to 3 were assaulted and they were injured. He went to the scene of crime and shifted PW.1 to SCS Hospital, Mangaluru for providing treatment and whereby subjected to examination by PW.12 being the Doctor who issued wound certificate as per Ex.P16. But the Doctor has stated that injuries are simple in nature. When the injuries inflicted over the person of PW.1 are simple in nature, then the 21 ingredients of Section 324 of IPC relating to grievous hurt and even Section 307 of IPC, it indicates to make an attempt to take away the life of the injured. But on close scrutiny of ingredients relating to Sections 324 and 307 of IPC, it would run contrary insofar as ingredients of provision of IPC. But in the instant case, it is relevant to refer the evidence of PW.12 being the Medical Officer in SCS Hospital, Mangalore and whereby he had given treatment to the injured. He has stated that PW.1 was brought to the hospital by his father with the history of assault by group of people with swords and rods at Vamannjoor, on the same day at about 11.45 p.m. He had sustained three incise wounds. One over the skull and the other two over right and left index fingers. He opined that all the injuries were simple in nature and accordingly, issued wound certificate at Ex.P16. He had also stated that the investigating officer had produced the knife with wooden handle, wooden stick and a reaper for examination and for his opinion. 22 He examined those material objects and opined that injuries mentioned in Ex.P.16 could have been caused with those weapons. His opinion is as per Ex.P17. He also identified weapons as per MOs.4 to 6. He also stated that the as per the hospital records, the blood group of injured PW.1 was O+ve. The report in this regard is as per Ex.P18.
15. PW.13 – Dr.Geethalakshmi is the Scientific Officer at RFSL, Mangaluru. She subjected to examination the material items such as shirt, pant, banian, knife, wooden stick and a reaper which were said to have been received in six sealed packets by the investigating agency. She found blood stains on all the articles and stains were of human origin with ‘O’ group. Accordingly, she submitted report as per Ex.P19.
16. PW.15 – Narasimha Moorthy being the investigating officer was subjected to examination and he had thoroughly investigated the case and laid the 23 charge sheet against the accused. But soon after receipt of information relating to injured PW.1 who got admitted in SCS Hospital, Mangaluru, he rushed to that hospital and recorded the statement of the injured. Based upon his information criminal law was set into motion by registering case in Crime No.157/2012 by recording FIR as per Ex.P14. But PW.2 – Hasan Ali had shown the scene of crime and in the presence of PWs. 4 and 11 that PW.15 who drew the spot mahazar as per Ex.P2. During the course of investigation the voluntary statement of accused No.1 has been recorded as per Ex.P21 and accused No.1 who had taken PW.7, 14 and 15 along with PW.15 being the investigating officer and produced weapons of M.Os.4 to 6 and those deadly weapons were seized by drawing seizure mahazar as per Ex.P12 and he recorded the statement of PWs.2, PW.3, PW.4, PW.5 and PW.7. But these witnesses did not withstood the version of their statement said to have been recorded by the Investigating Officer during the 24 course of investigation. However, their evidence runs contrary to the evidence of PW.1 – injured. But at a cursory glance of evidence of PW.4 and also PW.6 who is the father of the injured who was assaulted and they were injured, but there is no wound certificate of PWs.2 and 3 who were secured and produced by the prosecution to establish the case against the accused. PW.7 is the panch witness relating to Ex.P12 – seizure mahazar and recovery of M.Os.4 to 6. But this witness turned around in respect of Ex.P12 and even this witness has been subjected to cross-examination after being turned hostile, but nothing worthwhile has been elicited by the prosecution. His evidence has also been appreciated by the trial Court inclusive of evidence of PW.1 who is the injured and so also PWs.2 and 3, but nothing worthwhile was facilitated by the prosecution. PW.15 being an Investigating Officer who laid the charge sheet against the accused by drawing spot mahazar at Ex.P2, seizure mahazar at Ex.P4 and that seizure 25 mahazar was drawn in pursuance of panchas. However, in the criminal justice delivery system, it is the domain vested with the prosecution to establish the guilt of the accused by facilitating the consistent, cogent, corroborative evidence to probabalise that the accused have committed the alleged offence. But at a cursory glance of the entire evidence of the prosecution witnesses in this appeal, nothing worthwhile evidence has been facilitated by the prosecution to secure conviction. Therefore, the trial Court had rightly come to the conclusion that the prosecution has miserably failed to prove the guilt of the accused. When once the doubt arise in the mind of the court, the benefit of such doubt should always accrue on the part of the accused and it is the doctrine of criminal justice delivery system. Insofar as Section 3 of the Indian Evidence Act, it relates to proving and disproving of the facts. But this domain is vested with the prosecution to prove the guilt of the accused. In the instant case, the prosecution has 26 miserably failed to prove the guilt of the accused, but mere because injured has been subjected to examination and mere because material objects have been recovered and so also, mahazars said to have been drawn by the investigating officer, it cannot be said that the prosecution has established the guilt of the accused beyond reasonable doubt. Therefore, in this appeal we are of the opinion that the trial Court had rightly come to the conclusion by acquitting the accused and there is no perversity and absurdity in the acquittal judgment rendered by the trial Court. Therefore, it does not arise for call for interference and so also, there is no warranting circumstances that arise for revisiting the acquittal judgment rendered by the trial Court. Moreover, it is opined that the appeal preferred by the State appears to be devoid of merits. In terms of the aforesaid reasons and findings, we proceed to pass the following:
27. ORDER
The appeal preferred by the State under Section 378 (1) and (3) of Cr.P.C is hereby rejected. Consequently, the acquittal judgment rendered by the trial Court in SC.No.169/2013 dated 06.04.2016 is hereby confirmed. The bail bond if any, executed by the accused shall stands cancelled. Sd/- JUDGE Sd/- JUDGE DKB