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2008 DIGILAW 276 (KAR)

Hanumanthaiah K. v. Narasimhaiah

2008-06-09

A.S.PACHHAPURE

body2008
ORDER A. S. Pachhapure, J. The complainant has preferred this petition challenging the acquittal of the respondent No.1 (accused) in respect of the charges for the offences punishable under Sections 323, 324, 504 and 506(b) of the IPC on a trial held by JMFC, Tiptur. 2. The facts relevant for the purpose of this Revision are as under:- There was a land dispute between the petitioner and the accused (first respondent herein) and it is alleged by the complainant that on 27.10.2004 around 3 pm. when he was in front of a shop in APMC Yard, the accused abused him in filthy language by holding the collar of his shirt and dragged him on to the ground, fisted on his face and kicked on his stomach, ribs and caused injuries. Even on the next day at about 4 pm., when the complainant was taking tea in a tea shop, the accused abused him in filthy language, threatened him by showing a chopper and attempted to assault with a chopper. The said chopper was snatched by one Sadashivaiah and thereafter a complaint came to be lodged in respect of these incidents on 28.10.2004 to PW-6 and the crime was registered and the complaint at Ex.P1, the FIR Ex. P7 were sent to the Magistrate. PW-6, went to the scene of occurance, held the spot mahazar Ex.P2 and recorded the statements Exs.P2 to P4. The injured was also examined by the Doctor PW-5 and the Injury Certificate was secured. The chopper M.O.1 was also seized during investigation. After the completion of the investigation, charge sheet came to be filed against the accused, the respondent No.1 herein. 3. During the course of the trial, the prosecution led the evidence PWs 1 to 6 and got marked the documents Ex.P1 to P6 and M.O.1. The statement of the accused was recorded. He took the defence as total denial and has not led any evidence. On appreciation of the material on record, the learned Magistrate has acquitted the accused -respondent No.1 and aggrieved by the acquittal, this Revision has been preferred by the complainant. 4. The points that arise for my consideration are:- i) Whether the order of acquittal of the first respondent herein is illegal and perverse? ii) What order? My answer to the above points are as under:- Point No.1: Affirmative. Point No.2: As per final order for the following reasons:- REASONS 5. 4. The points that arise for my consideration are:- i) Whether the order of acquittal of the first respondent herein is illegal and perverse? ii) What order? My answer to the above points are as under:- Point No.1: Affirmative. Point No.2: As per final order for the following reasons:- REASONS 5. As could be seen from the evidence of the complainant PW1, states in his evidence that on 27.10.2004 at about 3 pm when he was in the Market Yard, the accused came and abused him in filthy language and dragged his shirt by holding the collar and when the complainant fell down, he fisted on his face and kicked on his stomach and ribs. On the same day, the complainant was taken to the hospital. But, he did not file the complaint on that day. On the next day at about 4 pm, when the complainant was in the tea shop, again the accused said to have come to the shop and threatened the complainant showing the chopper and as the persons collected intervened, the accused went away. It is thereafter the complainant went to the Police Station at 5.30 pm and submitted his complaint Ex. P1, which came to be registered by PW-6, the incharge Police Officer and the FIR was sent. 6. To support the version of the prosecution, the Doctor PW-5 was examined and the Injury Certificate has been marked as Ex.P5. The perusal of the Injury Certificate reveals that the complainant went to the hospital on 27.10.2004 at 4 pm i.e., within an hour of the incident with the history of manhandling. On examination, the Doctor found an abrasion over the right side of the face measuring 1/2 cm x 4 cms and another abrasion measuring 1-1/2 cms x 3 cms and these injuries were with fresh blood and the Doctor has certified these injuries as simple in nature and in the evidence, the doctor states that such injuries can be caused by nails. In support of the incident, apart from PW-1, the injured PWs 2,3,& 4 have been examined by the prosecution and they consistently support the case of the prosecution as regards the assault by the accused. In support of the incident, apart from PW-1, the injured PWs 2,3,& 4 have been examined by the prosecution and they consistently support the case of the prosecution as regards the assault by the accused. The Trial Court solely on the ground that there is discrepancy as regards the nail marks on the face and that there is no mention of causing injuries by the nail in the complaint filed by PW-1 has acquitted the accused. It is relevant to note that the evidence if the injured witness stands at a higher footing than that of any other eye witness. An injured does not generally implicate an innocent unless there are such reasons which compel him to have self inflicted injuries and to file a complaint against the accused. It is relevant to note that the first incident occured on 27.10.2004 around 3 pm and within one hour, the complainant was in the hospital and he was treated by the Doctor -PW-5 and though the complainant has taken treatment within an hour, I do not find any reason for the Doctor to issue a false Certificate and there is no justification in the defence putforth to PW-5 for issuance of a false certificate to support the injured. There is also a land dispute admittedly between the complainant and the accused and thereby the motive for the incident stands proved. When there is proof of injuries and the incident has been spoken to by PWs 2 to 4 as regards the assault by the accused and when PW-1, the injured states in his evidence that the accused scratched his face with the fingers, his evidence is corroborated by the medical evidence of the Doctor PW-5. If there is any delay in the information to the concerned authorities and if that delay is deliberate, the possibility of false implication can be inferred. Though there is a delay in lodging the complaint, the fact that the complainant PW-1 went to the Doctor on 27.10.2004 at around 4pm i.e., within one hour of the incident falsify the false implication and strngthens the evidence and the evidence of injured is corroborated by PWs 2 to 4 and in the circumstances, there is ample evidence atleast to the extent of offence under Sec.323 of the Indian Penal Code. In that view of the matter, I am of the considered opinion that the Trial Court was wrong and committed an illegality in acquitting the petitioner for the offence under Sec. 323 of IPC. 7. As it is a Revision by the complainant and the State has not preferred any Appeal against the acquittal, this Court has no authority to convert the order of acquittal into conviction. In that view of the matter, I am of the opinion that it is just and proper to remit the matter to the Trial Court by setting aside the order of acquittal and to consider the evidence led by the prosecution afresh in the context of the observations made as regards the appreciation of the evidence of the injured witness, which has been supported by the medical evidence and other eye witnesses. In the circumstances, I answer Point No.1 in Affirmative and proceed to pass the following:- ORDER The Revision Petition is allowed. The order of acquittal of the accused (respondent No.1 herein) dated 28th November 2005 is set aside and the matter is remitted back to the Trial Court to dispose of the case in accordance with law and in the light of the observations made above, and as the incident is of the year 2004, the Trial Court is directed to dispose of the case within six months from the date of the communication of the order.