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2009 DIGILAW 344 (KAR)

State by Vijayapura Police v. Doddasubbanna

2009-05-29

A.N.VENUGOPALA GOWDA, MANJULA CHELLUR

body2009
Judgment :- (This Crl.A is filed U/S. 378(1) & (3) Cr.P.C. by the SPP Praying to grant leave to file an appeal against the judgment Dated 21.9.2001 passed by the Sessions Judge, Bangalore Rural District, Bangalore, in S.C.No.196/988 acquitting the respondents/accused for the offences punishable Under Sections 143, 147, 148, 323, 324, 326, 307, 506 R/W S.149 IPC.) This appeal is directed against the judgment and order of acquittal passed by the learned sessions judge, Bangalore Rural District, Bangalore, dated 21.09.2001 in Sessions Case No.196/1998. 2. Brief facts, according to prosecution, which are necessary to dispose off this appeal could be stated as follows; That, on account of dispute between the accused persons and PWs 1 to 8 in connection with taking water from tank to feed their lands, situated near the tank of Yembrahalli Village; Accused persons had formed an unlawful assembly on 05.01.1998 at about 7:00 a.m., near Basaveshwara Temple of Yembrahalli Village, with the common object of committing riot and taking way the life of the above said persons, assaulted them with clubs and reapiece patties when they were going to their lands in order to feed water. In the process they caused simple injuries, besides grievous injuries to PWs 3 & 4. They even threatened to take away their lives. PW-1 lodged a complaint at Vijayapura police station. When police visited the place of incident at 10:00 a.m., on 05.01.1998, it is stated that, PW-9 produced M.Os 1 to 11 possessed by the accused persons, which were snatched by him and a mahazar was drawn as per Ex.P-3, in the present of PWs 11 & 12. FIR/Ex.P-4 was issued on the basis of Ex.P-3. Injured persons were taken to Government Hospital at Devanahalli, where they were given treatment. PWs 3 & 4 were referred to Victoria Hospital for further treatment. Exs.P-5 to P-11 are the wound certificates issued by the Doctors. After recording statements of the witnesses and completing the investigation, charge sheet against all the accused persons was filed before the Jurisdictional Magistrate at Devanahalli, for the offences punishable under Sections 143, 147, 148, 307, 323, 324, 326 and 506 read with Section 149 of I.P.C. The case was committed under Section 209 Cr.P.C. to the Sessions Court. After recording statements of the witnesses and completing the investigation, charge sheet against all the accused persons was filed before the Jurisdictional Magistrate at Devanahalli, for the offences punishable under Sections 143, 147, 148, 307, 323, 324, 326 and 506 read with Section 149 of I.P.C. The case was committed under Section 209 Cr.P.C. to the Sessions Court. The case against accused No.6 was split up and charge was framed against other accused persons for the offences punishable under Sections 148, 307 and 506 read with Section 149 of I.P.C. The accused pleaded not guilty for the charge and case was posted for trial. During the course of trial, 16 witness out of 18 witness cited in the charge sheet were examined by the prosecution. 12 documents and 11 material objects were marked in support of the prosecution case. Except marking Ex.D-1 during cross-examination of PW-14, accused have not adduced any evidence in their defence even after they were questioned under Section 313 Cr.P.C. Keeping in view the rival contentions and after examining record of the case, learned Sessions Judge has answered the points raised by him against the prosecution by holding that, prosecution has failed to bring home the guilt of accused persons beyond reasonable doubt for the offences charged against them and given them benefit of doubt in the light of the counter-case filed against them. 3. The State, aggrieved by the trial court judgment, has preferred this appeal. 4. Before proceeding further, it would be appropriate to notice the main reasons for acquittal of accused by the learned Sessions Judge. (a) Prosecution witness 1 to 8 and 10 are related to each other. (b) Independent eyewitness PW-9, has turned hostile to prosecution and no other independent eyewitness was examined. (c) No corroboration for evidence of the relative witnesses. (d) Delay of more than a day, complaint reaching the Court which is not explained, is fatal on account of the counter case by accused party against the complainant and his supporters (prosecution party). (e) No consistency in the evidence of witnesses examined and present of the PWs 1 & 10 at the place of incident is doubtful, which is apparent from the deposition of PW-10. (f) Inconsistency in the statements of PWs with regard to the assailants, weapons held and the injuries. (g) Blood stained clothes not seized by the police. (e) No consistency in the evidence of witnesses examined and present of the PWs 1 & 10 at the place of incident is doubtful, which is apparent from the deposition of PW-10. (f) Inconsistency in the statements of PWs with regard to the assailants, weapons held and the injuries. (g) Blood stained clothes not seized by the police. (h) Ex.P-3 – Spot mahazar does not show the presence of blood stains at the spot of incident. (i) Prosecution case is doubtful, in view the counter case filed by accused party against prosecution party. 5. We have heard Sri P.M. Nawaz, learned Addl. State Public Prosecutor for the appellant. Respondents, though have entered appearance through their learned Advocate, remained absent. We have perused the record. 6. Sri P.M. Nawaz, by taking us through the evidence of PWs 1 to 16 and Exs.P-1 to Ex.P-12, vehemently contended that, (i) The impugned judgment and order of acquittal recorded by the trial court is contrary to the facts, circumstances, probabilities of the case and the law. (ii) Learned trial judge has seriously erred in appreciating both oral and documentary testimony on record. (iii) Reasons assigned by the trial court while discarding the testimony of PWs 2-8 being the injured, is unreasonable. Merely because they are related to each other, the evidence, which is consistent, could not have been discarded. (iv) There is no correct evaluation of evidence and the view taken by the trial court is unreasonable and illegal. (v) The appellate court has all the powers to re-appreciate and re-evaluate the entire evidence on record. (vi) The discrepancies pointed out in the impugned judgment, are insignificant in nature, therefore liable to be ignored. (vii) This is a fit case to reverse the findings and record an order of conviction. 7. We have given anxious consideration to the submissions. The point that would arise for our consideration is “whether in the facts and circumstances of the case, the judgment of acquittal passed by the Trial Court warrants interference?” 8. PW-1 has admitted that, there was a criminal case against his son and others in the Court of JMFC at Devanahalli, which was subsequently withdrawn to the Sessions Court and is pending in C.C. No.2/2000. PW-2 also admits the pendency of said case against him in connection with assault on the accused persons with salike by him and others. PW-14, who has prepared Ex. PW-2 also admits the pendency of said case against him in connection with assault on the accused persons with salike by him and others. PW-14, who has prepared Ex. P3 has also admitted that on 05.01.1998 itself, a case in Crime No.3/1998 was registered in the police station against some of the witnesses of the complainant’s side. Undisputedly, the accused party also lodged a complaint against the prosecution party, over the same incident, which happened on 05.01.1998. It is not in dispute that, on the strength of the complaint lodged by accused party, investigation was carried out and charge sheet was filed in C.C.No.2/2000 against the prosecution party herein alleged to be the real aggressors. 9. The procedure to be followed by the trail courts, in the event of cross-cases, has been well settled by the Hon’ble Supreme Court, in the case of Nathi Lal Vs. State of U.P., 1990 SCC (Cri) 638 which is to the following effect. “2. We think that the fair procedure to adopt in the 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, but he must reserve the judgment. Thereafter he must proceed to hear the cross-case and after recording all the evidence he 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.” 10. Indisputably, the Investigating Officer submitted charge sheet in C.C.2/2000 on the basis of the complaint lodged by the accused party herein in respect of the same incident against the prosecution party herein. But both the judgments must be pronounced by the same learned judge one after the other.” 10. Indisputably, the Investigating Officer submitted charge sheet in C.C.2/2000 on the basis of the complaint lodged by the accused party herein in respect of the same incident against the prosecution party herein. The Sessions Court having withdrawn the said case, which was pending on the file of the Magistrate Court, it would have been just, fair and proper to have decided both the cases together by itself, in view of the law declared by the Hon’ble Supreme Court in the case of Nathi Lal (supra). 11. In the case of Sudhir Vs. State of Madhya Pradesh, (2001) 2 Supreme Court Cases 688, a case and a counter-case, both were committed to the Court of Session, as both cases involved offences triable exclusively by Sessions Court. But after hearing the preliminary arguments, the Sessions Judge felt that, in one case no offence triable exclusively by the court of Session is involved, whereas in the other case a charge for offences including one triable exclusive by the Session Court could be framed. The core issue which came up for consideration was that, “Is it necessary in a situation that the Sessions Court should transfer the former case to the Chief Judicial Magistrate for trial as envisaged in Section 229(1) of the Code of Criminal Procedure”. Keeping in view the decision in Nathi Lal (supra) and the provisions made under Sections 323 & 228, it was held that the Session Judge ought not to have transferred the second case to the Chief Judicial Magistrate as he did, but he himself should have tried it and it was held as follows: “16. The employment of the word “may” at one place and the word “shall” at another place in the same sub-section unmistakably indicates that when the offence is not triable exclusively by the Sessions Court it is not mandatory that he should order transfer of the case to the Chief Judicial Magistrate after framing a charge. In situations where it is advisable for him to try such offence in his court there is no legal obligation to transfer the case to the Chief Judicial Magistrate. In situations where it is advisable for him to try such offence in his court there is no legal obligation to transfer the case to the Chief Judicial Magistrate. One of the instances for not making the transfer is when a case and a counter-case have been committed to the Sessions Court and one of those cases involves an offence exclusively triable by the Sessions Court and the other does not involve any such offence.” 12. Thus it is clear that, cross-cases should be tried together by the same court, irrespective of the nature of offence involved, primarily, to avoid the conflicting of the judgments, over the same incident, because if cross-cases are allowed to be tried by two courts separately, there is likelihood of conflicting judgments. 13. In the instant case, despite the investigation leading to filing of charge sheet in C.C. No.2/2000 and also the case being withdrawn to the Court of Session, the court below without adopting the procedure and guidelines declared in the case of Nathi Lal (supra), has passed the impugned judgment. According to the prosecution, the investigation of the incident on the basis of complaint and cross-complaint, lead to the filing of charge sheets in both the cases. Both the said complaints, cannot be said to be right, one of them, must be false. In such a situation, legal obligation is cast upon the Investigating Officer, to make an endeavor to find out the truth and cull out the truth from falsehood. Significantly, Investigation Officer has not deposed in the matter. The investigation Officer has failed to discharge the obligation. Even otherwise, the court should have adopted the procedure indicated in the case of Nathi Lal (supra), to find out which party was the real aggressor. 14. PW-1 is the complainant/eye witness to the incident in question. PWs 2 to 8 are the injured persons in the incident. PWs 9 & 10 were also cited as the eye witnesses. PW-9 has not supported the case of the prosecution. PWs 11 & 12 are the panchas for Ex.P-3. PW-13 had brought FIR from the police station and delivered the same to the Court on 06.01.1998 at about 10:30 a.m. PW-13 having accompanied the Investigation Officer, has written Ex.P-3. PWs 15 & 16 were the Medical Officers who treated the injured persons and issued wound certificates as at Exs.P-5 to Ex.P-11. PW-13 had brought FIR from the police station and delivered the same to the Court on 06.01.1998 at about 10:30 a.m. PW-13 having accompanied the Investigation Officer, has written Ex.P-3. PWs 15 & 16 were the Medical Officers who treated the injured persons and issued wound certificates as at Exs.P-5 to Ex.P-11. The case of the prosecution is required to be examined in the light of the statements made by said witnesses and Ex.P-1 to Ex.P-11. 15. PW-1 is the father of PW-2. PW-10 is the brother of Pw-7. Indisputably, PWs 1 to 8 and 10 are related to each other and so also the accused persons. The only independent eye witness examined is PW-9, who has turned hostile to the prosecution. Since, PWs 1 to 8 and 10 are related to each other, their evidence is required to be scrutinized carefully, in the absence of corroborative evidence by any other independent witness or evidence. PW-1 has stated that, he lodged complaint-Ex.P1, on the date of incident itself. PW-13 has stated that he was entrusted with Ex.P-1 & Ex.P-4 at 9:30 a.m. on 06.01.1998 and he delivered the same to the court at about 10:30 a.m. Perusal of Ex.P-1 shows that it was received by the police at about 10:00 a.m., on 05.01.1998 and is said to have been dispatched at 11:00 a.m., on 05.01.1998 as mentioned in Ex.P-4. The delay of one day in reaching the complaint (Ex.P-1) and FIR (Ex.P-4) has not been explained. A person from Vijayapura can reach Devanahalli in about 30-40 minutes time. The long delay assumes importance in view of the defence of the accused that, a case of assault on some of them was filed and was registered against the prosecution witnesses, which after investigation has resulted in filing of charge sheet in C.C. No.2/2000. In the circumstances, the Investigating Officer ought to have ascertained which party was the aggressor at the first instance and whether the aggressor at the subsequent stage has acted in self-preservation. Prosecution witnesses have not stated anything about the assault on the accused party. 16. PW-10 has stated that, about 30 persons had assembled at the time and place of incident. Who were those 30 persons has not been stated. The incident having taken place near a temple at about 7:00 a.m., number of other persons would be present. Prosecution witnesses have not stated anything about the assault on the accused party. 16. PW-10 has stated that, about 30 persons had assembled at the time and place of incident. Who were those 30 persons has not been stated. The incident having taken place near a temple at about 7:00 a.m., number of other persons would be present. PW9 was the only independent eyewitness examined, who has not supported the prosecution. Though the presence of others could be inferred from the statement of PW-10, no other independent eye witnesses has been examined, which creates reasonable doubt in the case of the prosecution. In view of the statement of PW-10 to the effect that, about 30 persons assembled near the place of incident, in our opinion, non-citing of one or few of them as witnesses and their non-examination, creates reasonable doubt in the prosecution case. That apart, there are major contradictions even in the statements of PW-1 and PW-10. 17. PW-1 has deposed that, PWs 2 to 8 had bleeding injuries, that blood had fallen at the place of incident and as well as on M.Os 1 to 11. PWs 2, 4, 5 & 7 have stated about the sustaining of bleeding injuries and that their clothes being blood stained. Even PW10 has deposed that, clothes of PWs 2 to 8 were blood stained. But, there is no seizure of blood stained clothes. Ex.P-3-spot mahazar, does not indicate the presence of blood stains at the place of incident. 18. PW-1 has not stated the weapon with which PW-2 was assaulted by accused No.1. Similarly PWs 6 & 7 have not stated with which weapon, PW-2 was assaulted by A-1. PWs 3 & 4 have not even named A-1 as the assailant of PW-2. The evidence of prosecution witnesses, to which a detailed reference has been made by the learned sessions judge in the impugned judgment shows that, there is no consistency and hence is unreliable. There is great deal of discussion made in the impugned judgment with regard to the discrepancies and inconsistency in the statements of prosecution witnesses, which in our view, is justified. We do not intend to repeat the same, since there is a detailed reference and consideration by the trial court. There is great deal of discussion made in the impugned judgment with regard to the discrepancies and inconsistency in the statements of prosecution witnesses, which in our view, is justified. We do not intend to repeat the same, since there is a detailed reference and consideration by the trial court. Detailed reference has been made in the impugned judgment by the trial court even to the evidence of both the Medical Officers and also the police witnesses. 19. The fact that no independent witness, though available, was examined, is a serious infirmity in the prosecution case having regard to the facts of the case. Only independent witness PW-9, as already noticed has not supported the prosecution case. The corroboration of testimony of PWs 1 to 8 and 10, by an independent witness, could have strengthened the prosecution case, in view of the fact that, incident took place near a temple at 7:00 a.m., where 30 persons had assembled. Mere non-examination of independent witness may not give rise to an adverse inference against the prosecution case, especially when the prosecution has examined the injured witnesses. However, when the evidence of alleged eyewitnesses, PWs 1 & 10 raises serious doubt and other prosecution witnesses are related to each other, non-corroboration of their evidence, when there is delay in lodging of FIR, would certainly assume importance. This is further strengthened from the fact that, no bloodstains were found near the place of incident and the bloodstained clothes were not seized by the Investigating Officer. There are serious doubts in the evidence of the prosecution witnesses and hence we come to the conclusion that, there is a reasonable possibility of the accused not being the real aggressors and in the absence of cogent, consistent and trustworthy evidence appearing on record against the accused, it is also difficult to sift the grain from the chaff, especially, when there is counter-case filed by the accused party against the prosecution party, to hold the accused as guilty of commission of the offence. 20. It is well settled by the Hon’ble Supreme Court, by catena of decisions to the effect that, to overrule or otherwise disturb an order of acquittal passed by the trial court, there should be “substantial and compelling reasons” and that the appellate court must always give proper weight and consideration to the findings of the trial court. 20. It is well settled by the Hon’ble Supreme Court, by catena of decisions to the effect that, to overrule or otherwise disturb an order of acquittal passed by the trial court, there should be “substantial and compelling reasons” and that the appellate court must always give proper weight and consideration to the findings of the trial court. It has also been held that, if two reasonable views can be reached, one that reaches to acquittal, the other to conviction, the appellate court must rule in favor of the accused. Though the appellate court’s power is wide and extensive, it must be used with great care and caution. 21. On consideration of the entire evidence on record, the view taken by the trial court is a possible and plausible view. The trial court has discussed the material aspects of the case and has correctly appreciated the evidence, to record its opinion and pass an order of acquittal, in view of the prosecution failing to prove its case beyond reasonable doubt. On consideration of the record, we do not find any substantial or compelling reason to interfere with the impugned judgment and order of acquittal. For the foregoing discussion and reasons, the appeal is devoid of merit and consequently stands dismissed. We order accordingly.