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2008 DIGILAW 451 (KAR)

Basappa v. State of Karnataka

2008-08-27

V.JAGANNATHAN

body2008
JUDGMENT V. Jagannathan, J: The appellants, who were A-I, A-2 and A-4 respectively before the Trial Court, call in question their conviction and sentence passed by the learned Sessions Judge, Bijapur. A-I and A-2 were convicted for the offence punishable under Section 307 read with Section 149 of the I.P.C. and sentenced to six years R.L and to pay a fine ofRs.5,000/ - each and in default of payment of fine, to undergo three months imprisonment. Further, they were convicted for the offence under Section 326 of the I.P.C. and sentenced to one year R.L with the fine of Rs.500/each, and A-4 was convicted for the offence under Section 326 of the I.P.C. and sentenced to one year R.L and a fine of Rs.500/- and in default, to undergo one month's imprisonment. 2. The case of the prosecution, in brief, is to the effect that on 25.10.1998, at about 9.00 a.m., when complainant Sangappa was in his land, the accused persons came there by driving the bullock-cart and this was questioned by the complainant and he told them not to go across his land and this led to the incident in which the accused persons said to have assaulted the complainant and further, the complainant's son also sustained injuries in the said incident and, thereafter, some persons rescued the complainant's party. 3. Based on the complaint lodged by the aforesaid Sangappa (P.W. 1) as per Ex.P- 1, investigation was taken up leading to filing of the charge-sheet against the fourteen accused persons for the offences punishable under Sections 143, 504, 506, 324, 307 read with Sections 149 and 324 read with 34 of the I.P.C. Following the accused persons pleading not guilty to the charge, the prosecution led the evidence by examining P.Ws. 1 to Section 13 and marking the documents Exs.P- 1 to P- 19 and producing M.Os. 1 to 5. The accused denied the prosecution case when questioned under Section 313 of the Cr.P.C. The accused led no defence evidence. 4. After appreciating the evidence on record, the learned Trial Judge found the case having been made out only against the present appellants, who are A-I, A-2 and A-4 respectively, and convicted them and also sentenced them as mentioned earlier. The appellants, therefore, call in question their conviction and sentence in this appeal. 5. 4. After appreciating the evidence on record, the learned Trial Judge found the case having been made out only against the present appellants, who are A-I, A-2 and A-4 respectively, and convicted them and also sentenced them as mentioned earlier. The appellants, therefore, call in question their conviction and sentence in this appeal. 5. Heard the arguments of the learned Counsel for the appellants Shri S.V. Pattanshetti and the learned Addl. S.P.P. Smt. Anuradha M. Desai for the State and perused the entire material on record. 6. The learned Counsel for the appellants mainly put forward the ground of the entire trial being vitiated on account of the case and the counter case, arising out of the same incident, having not been tried by the same Court. It is submitted that the learned Trial Judge has also taken note of the case and the counter case having arisen out of the same incident that took place on 25.10.1998 at 9.00 a.m. But, the Trial Court, despite coming to know of the two cases arising out of the same incident, proceeded with the case and convicted the appellants herein although being aware of the counter case ending in acquittal. The said procedure followed by the learned Trial Judge, therefore, is contrary to law and the guidelines laid down by the Apex Court. In this connection, the learned Counsel placed reliance on a ruling of the Apex Court reported in 2003 SAR (Cri) 409 and also on another ruling of this Court reported in 1984(2) Kar.L.J. 1 . Therefore, the learned Counsel submitted that the judgment of conviction passed by the Trial Court against the appellants cannot be sustained in law. 7. On the other band, the learned Addl. S.P.P. for the State contended that mainly because the counter case ended in acquittal, that is no ground to acquit the present appellants also, on the basis of the evidence that is placed in the instant case. It was also submitted that the appellants also did not bring to the notice of the Court about a case and a counter case having arisen out of the same incident. For all these reasons, the judgment of the Trial Court cannot be interfered with in this appeal. 8. It was also submitted that the appellants also did not bring to the notice of the Court about a case and a counter case having arisen out of the same incident. For all these reasons, the judgment of the Trial Court cannot be interfered with in this appeal. 8. In view of the aforesaid contentions put forward by the learned Counsel for the appellants, it is necessary to answer the point raised for consideration, as it will go to the root of the matter. I, therefore, deem it unnecessary to refer to the evidence part of this case. 9. From the submissions made by the learned Counsel for the parties, it is not in dispute that the very same incident that took place on 25.10.1998 at 9.00 a.m. involving the complainant's group and the appellants-accused in the present case gave rise to two complaints being lodged by the respective complainants. It is also not in dispute as could be seen from the judgment of the Trial Court itself that there was also a counter case having arisen out of the same incident and both the cases were not clubbed together. The further fact, which is not in dispute, is that the counter case was tried by the Magistrate's Court, Muddebihal, and the present case was tried by the learned II Addl. Sessions Judge, Bijapur. 10. The further admitted fact is that the counter case ended in acquittal by the judgment in C.C.No. 114/1999 dated 20.12.2001. In the instant case, the charge was framed by the learned II Addl. Sessions Judge, Bijapur, on 6.3.2002. In other words, much before the charge could be framed in the instant case, the counter case had ended in acquittal. 11. With the above admitted facts, can it be said that the Trial Court was justified in proceeding with the case and convicting the present appellants and whether it was permissible for the Trial Court to have tried the two cases separately when the incident that has given rise to the two cases is one and the same. 12. A three Judges Bench of the Apex Court in the case of State of M.P. Vs. Mishrilal reported in 2003 SAR (Crl) 409, speaking through His Lordship H.K.Sema, dealing with a case and a counter case and the necessity for trying both by the very same Court, has laid down the law as under: "8. 12. A three Judges Bench of the Apex Court in the case of State of M.P. Vs. Mishrilal reported in 2003 SAR (Crl) 409, speaking through His Lordship H.K.Sema, dealing with a case and a counter case and the necessity for trying both by the very same Court, has laid down the law as under: "8. In the instant case, it is undisputed, that the investigating officer submitted the challan on the basis of the complaint lodged by the accused Mishrilal in respect of the same incident. It would have been just fair and proper to decide both the cases together by the same Court in view of the guidelines devised by this Court in Nuthilal's case (supra). The cross-cases should be tried together by the same Court irrespective of the nature of the offence involved. The rational behind this is to avoid the conflicting judgments over the same incident because if cross cases are allowed to be tried by two Courts separately, there is likelihood of conflicting judgments. In the instant case, the investigating officer submitted the challan against both the parties. Both the complaints cannot be said to be right. Either of them must be false. In such a situation, legal obligation is cast upon the investigating officer to make an endeavour to find out the truth and to cull out the truth from the falsehood. Unfortunately, the investigating officer has failed to discharge the obligation, resulting in grave miscarriage of justice. In the aforementioned case, the Apex Court also referred to its earlier decision in the case of Nathial Vs. State of U.P. (1990 (Supp.) Section 145, and quoted the observations made therein, which are as under: "We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments to but he must reserve the judgment. Thereafter, he must proceed to hear the cross case and after recording all the evidence be must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. Thereafter, he must proceed to hear the cross case and after recording all the evidence be must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the Judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other." 13. A Division Bench of this Court, in the case of State of Karnataka Vs. Balappa Bhau Vadagave, reported in 1984(2) Kar.L.J. 1 " dealing with a case where the I.O., had filed two separate charge-sheets in respect of a case and a counter case arising out of the same incident, had observed thus at paragraph-74: "74....... There cannot be any two opinions that the case and the counter case arising out of the same incident though registered in separate crime numbers, are not two independent cases, but two versions of the same incident. For the purpose of investigation, both the complaint and the counter-complaint are registered separately but the truth or otherwise of the complaint and the counter-complaint shall have to be verified by the same investigating officer, investigating both the crimes impartially and diligently and after completing the investigation, assess the material collected in both the crimes, from an opinion as to which of the persons in the complaint or the counter-complaint, as the case may be, have committed the offence and place the charge-sheet against such persons. 14. 14. In the light of the aforesaid law laid down by the Apex Court and this Court, in the instant case, neither the I.O. nor the prosecution taking any steps to ensure that this case and the counter case are tried by the same Court, therefore, as has been observed by the Apex Court, the procedure followed by the Trial Judge in trying the present case separately has given rise to conflicting judgments inasmuch as the counter case ended in acquittal, whereas the present appellants were convicted. Therefore, the procedure followed is not fair and proper and the I.O. in the instant case has failed in his legal obligation to ensure that both the cases are tried by the same Court in order to find out the truth and by not doing so, it has led to miscarriage of justice. 15. As far as the submission made by the learned AddI. S.P.P., for the State that the acquittal in the other case cannot have any bearing insofar as the conviction of the present appellants is concerned, I am unable to find any merit in the said submission made: As rightly pointed out by the learned Counsel for the appellants, the counter case ended in acquittal on the main ground of the Magistrate Court finding that the witnesses were close relatives of the complainant. But, on the other hand, in the instant case, the very same logic has been negative by the Trial Court and, therefore, the procedure followed by the learned Trial Judge is totally illegal and has deprived the appellants herein of a fair chance of putting the truth of the matter before the Court as the very same incident has also given rise to a complaint being filed by the present accused persons against the complainant, in the other counter case. 16. For the aforementioned reasons, I am of the view that as the procedure followed by the learned Judge of the Trial Court is quite contrary to the law laid down by the Apex Court and it has led to miscarriage of justice, the entire trial gets vitiated and consequently, the conviction of the appellants cannot be sustained in law on this score alone. 17. For the aforesaid reasons, the appeal is allowed and the judgment of the Trial Court convicting the present appellants and sentencing them is set aside. 17. For the aforesaid reasons, the appeal is allowed and the judgment of the Trial Court convicting the present appellants and sentencing them is set aside. The appellants are acquitted of the offences for' which they were convicted by the Trial Court and their bail bond shall stand discharged.