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2016 DIGILAW 932 (KAR)

Anil Raju Baiipattar v. State of Karnataka

2016-12-06

A.S.BOPANNA, B.A.PATIL

body2016
JUDGMENT : B.A. PATIL, J. 1. This appeal is preferred by the accused Nos. 1 and 2 being aggrieved by the judgment of conviction dated 22.8.2012 passed by the III Additional Sessions Judge, Bijapur in SC. 183/2011, by which accused Nos.1 and 2 are convicted for the offences punishable under Sections 341, 307 and 302 Read With Section 34 of IPC. 2. The case of the prosecution in brief is that on 15.8.2011 at about 7.25 a.m., the complainant along with his mother was proceeding on his scooter bearing Regn.K A-22/E.2559 to drop his mother to the Flag Hoisting ceremony in the school. It is the further case of the prosecution that when they came near Rambapuri Telephone Booth, both the accused persons with common intention and due to previous enmity with the complainant and his mother as they did not Co-operate in arranging another surety in the other criminal proceedings at Gadag, waylaid the complainant and his mother and in furtherance of common intention, assaulted the complainant with chopper and caused grievous injuries to him and both the accused with common intention further assaulted the mother of the complainant as a result of which she succumbed to the injuries. On the basis of the complaint a case was registered in Crime No.14/2011 before GG Police Station, Bijapur. Thereafter, police investigated the crime and filed the charge sheet. 3. After filing of the charge sheet, the committal Court on following the procedure laid down under Section 207 of Criminal Procedure Code committed the case to the Sessions Court. The Sessions Court after taking the cognizance secured the accused who were in custody and after hearing, the charge came to be framed. Since accused denied the charges and claim to be tried, the trial was fixed. 4. In order to prove its case, the prosecution in all has examined PWs.1 to 10 and got marked Exs.P1 to P39 and Material Objects at MO.Nos.1 to 15. Thereafter the statements of the accused were recorded under Section 313 of Cr.P.C. by putting the incriminating materials against them, which they denied and they have not led any evidence on their behalf. 5. Thereafter, on hearing the arguments of the learned Public Prosecutor and the learned counsel for the accused, the impugned judgment came to be passed. Assailing the said judgment and order, the accused Nos.1 and 2 are before this Court. 6. 5. Thereafter, on hearing the arguments of the learned Public Prosecutor and the learned counsel for the accused, the impugned judgment came to be passed. Assailing the said judgment and order, the accused Nos.1 and 2 are before this Court. 6. Heard the learned counsel for the appellants-accused Nos.1 and 2 and the learned Additional SPP appearing on behalf of the State. 7. The learned counsel for the appellants vehemently argued and contended that the learned Sessions Judge without proper appreciation of the evidence on record and without looking to the materials placed before him, has passed the impugned judgment and order. The impugned judgment and order is perverse and not based upon the legal evidence. He has also contended that even though the material witnesses have not supported the case of the prosecution, and those witnesses who have deposed in support of the prosecution, have not pointed out anything incriminating the said evidence is taken into account by the Trial Court only on assumption and presumption and on believing such evidence, has wrongly convicted the accused. It is further urged that the accused and deceased are relatives. Even though there is no motive to the alleged incident, only because of the alleged dispute between the parties relating to furnishing the surety in another case, they have been wrongly included in the crime. This aspect has not been properly appreciated by the trial Court while convicting the accused. On these grounds, he prays for allowing the appeal by setting aside the impugned judgment of conviction and order of sentence. 8. Per contra, the learned Additional SPP vehemently argued and contended that the presence of the accused at the scene of the offence has been proved by the prosecution by leading sufficient evidence. The deceased died due to the grievous injuries and the complainant has also sustained the injuries and in that background, the trial Court has rightly convicted the appellants-accused. He has also contended that the seizure of the articles is at the instance of the accused and immediately after the incident, accused persons have absconded without just cause. In that context, by drawing the inference, the trial Court has rightly convicted the accused. The accused have not at all made out any good grounds so as to interfere with the impugned judgment. 9. In that context, by drawing the inference, the trial Court has rightly convicted the accused. The accused have not at all made out any good grounds so as to interfere with the impugned judgment. 9. In the background of the contentions a perusal of the appeal papers and the evidence indicates that PW.1 is the injured complainant who is the son of the deceased. He has filed the complaint as per Ex.P 1. He was present at the time of the alleged incident, but has not supported the case of the prosecution and he has been treated as hostile. PWs.2 and 3 are the panchas for spot mahazar at Ex.P3 and recovery panchanama at Ex.P4 under which the clothes of the deceased were recovered as also the recovery panchanama at Ex.P5 under which MO.No. 13-chopper was recovered. He is also pancha for Ex.P6, under which the clothes of the accused No. 1 were recovered. They have also not supported the case of the prosecution and are treated as hostile PW.4 is the father of the complainant and the husband of the deceased to whom the complainant is stated to have informed telephonically about the incident. PW.5 is the pancha for seizure panchanama at Ex.P8, under which the scooter is MO.No.5. PW.6 is the doctor who examined the complainant-PW.1 and issued wound certificate as per Ex.P9. PW.7 is the Sub-Inspector of Police who received the information about the incident over phone and went to Government Hospital, recorded the statement of the complainant-PW. 1 and registered the case and issued FIR and sent the same to the jurisdictional Court. PW.8 is the Police Constable who carried the seized articles to FSL. PW.9 is the CPI who conducted the investigation in part. PW.10 is another CPI who conducted further investigation and after completion of the investigation, has filed the charge-sheet. 10. Keeping in view the above submissions and the evidence on record, we have examined whether the said material is sufficient so as to bring home the guilt of the accused beyond all reasonable doubt. The prosecution has initiated the criminal proceedings on the basis of the complaint at Ex.PI. On going through the said complaint, it reveals that there were no eye-witnesses to the incident in question except the deceased and PW. 1, the complainant. The prosecution has initiated the criminal proceedings on the basis of the complaint at Ex.PI. On going through the said complaint, it reveals that there were no eye-witnesses to the incident in question except the deceased and PW. 1, the complainant. In that light, if the other evidence which has been produced before the Trial Court is taken into consideration, nowhere it is established by the prosecution that it is the accused who assaulted the deceased and the complainant. Even PW. 1 who is none other than the son of the deceased has deposed that when he was proceeding on the scooter along with his mother, and came near Kasturi Colony, due to the assault to the head from behind he fell and became unconscious. He has also deposed that he does not know who assaulted him. In that light, the evidence of PW. 1 is contrary to the complaint Ex.P1. In other words, there is inconsistency in his evidence with reference to Ex.P1. Except PW.1 no other persons were present at the scene of incident. Though he was treated as hostile and cross-examined nothing worthwhile is extracted to support the case of the prosecution. In that light, the evidence of other witnesses, which has been produced before the Court will not connect in any manner the accused persons to the alleged incident. Apart from this, even other independent witnesses, including the father of the complainant who is the husband of the deceased, have not supported the case of the prosecution. In that backdrop, the only evidence which remains before the Court is that of the official witnesses, namely, PWs. 6 to 10. The evidence of those witnesses will also not help the prosecution in any manner so as to bring home the guilt of the accused beyond all reasonable doubt since they have come into picture at the later stage. 11. The contention of the learned Additional SPP that the accused persons had absconded immediately after the incident and there an adverse inference can be drawn as against the accused, does not hold any water because of the reason that mere abscondence of accused alone is not sufficient to draw an adverse inference against them more particularly when the complainant himself has not supported the case. Sometimes, it is quite possible that the accused might go away from the town, on apprehending the possibility of arrest by the police on suspicion and fearing harassment. This position of law has been laid down by the Apex Court in the case of S.K.Yusuf v. State of Bengal, reported in (2011) 3 SCC (Cri) 620, wherein it is observed in paragraph-31 as under: "Both the courts below have considered the circumstance of abscondence of the appellant as a circumstance on the basis of which an adverse inference could be drawn against him. It is a settled legal proposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely on being suspected, out of fear of police arrest and harassment. (Vide Matru v. State of U.P AIR 1971 SC 1050 ; Paramjeet Singh v. State of Uttarakhand, AIR 2011 SC 200 and Dara Singh v. Republic of India, AIR 2011 SC 1436 ). Thus, in view of the law referred to herein above, mere abscondence of the appellant cannot be taken as a circumstance which gives rise to draw an adverse inference against him." 12. Insofar as the contention of the learned Additional SPP with regard to seizure of the incriminating materials at the instance of accused No.1 is concerned, as the recovery panchas PWs. 3 and 4 have not supported the case of the prosecution and have turned hostile, the said contention of the State also fails. 13. On perusal of the impugned judgment, it is seen that the trial Court after perusal of the decisions of the Apex Court has taken note that even the evidence of the hostile witnesses cannot be totally discarded. In that light, though has discussed further, the Trial Court has not indicated how the fact situation would be relevant in the background of the decisions and has come to a wrong conclusion on the basis of the assumption and presumption and has wrongly convicted the accused. In that light, though has discussed further, the Trial Court has not indicated how the fact situation would be relevant in the background of the decisions and has come to a wrong conclusion on the basis of the assumption and presumption and has wrongly convicted the accused. Insofar as the position of law that the evidence of hostile witnesses should not totally be discarded is concerned, we are of the clear opinion that there can be no dispute to that position, but however, the same has to be subjected to the careful scrutiny and that portion of the evidence of the hostile witnesses if it is consistent, can be relied upon to bring home the guilt of the accused. In that light, if the judgment of trial Court is looked into, nowhere it is discussed and appreciated by the trial Court how and what portion of the evidence of the hostile witnesses indicates the involvement of the accused in the alleged crime. The Trial Court on the basis of the evidence of the official witnesses and on relying upon the exhibited documents, by drawing an adverse inference, has committed an error in convicting the accused. Even while appreciating the provision of Section 27 of the Indian Evidence Act, the Trial Court has failed to discuss as to how the recovery has been established. In that light, the evidence has not been properly appreciated in its entirety in the right manner by the Trial Court. Hence, it has arrived at the wrong conclusion though the guilt of the accused has not been established much less has it been proved beyond reasonable doubt. 14. In view of the above, the impugned judgment and order is not sustainable in law and therefore it is liable to set aside. Accordingly, the following: ORDER (i) Appeal is allowed. (II) The impugned judgment and order of conviction and sentence dated 22.8.2012 passed in SC.No. 183/2011 by the III Additional Sessions Judge, Bijapur is set aside. (III) The appellants-accused Nos.1 and 2 are hereby acquitted of all the offences with which they were charged. They are set at liberty. (IV) The bail bonds executed by the appellant herein stand cancelled. (v) The fine amount deposited if any, by the appellants before the Trial Court, shall be refunded to the appellants-accused Nos. 1 and 2.