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2017 DIGILAW 914 (KAR)

STATE OF KARNATAKA v. DHARAMANNA SALEGAON

2017-06-08

B.A.PATIL, B.V.NAGARATHNA

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JUDGMENT : B.A. Patil, J. The present appeal has been preferred by the State being aggrieved by the judgment of acquittal passed in S.C.No.13/2014 by IV Addl. Sessions Judge, Kalabauragi by its judgment and order, dated 27.9.2016. 2. The facts as per the complaint are that on 17.3.2013 at about 5:00 p.m., complainant and his friends were talking by sitting on the pial (katta) of Basavanna Temple, at that time accused persons came there and abused the complainant in vulgar language and further by saying that the complainant is having illicit relationship with his wife, by saying so he threw an axe towards the complainant. Since the complainant avoided the axe hitting him, the same fell down on the ground without hurting anybody. Thereafter, accused No. 1 removed an article resembling a pistol and abused the complainant and others by saying that if anybody were to touch him, he will kill all of them. Since the accused was holding an article resembling a pistol, nobody went near him, thereafter accused by abusing the complainant and others went away from that place. On the basis of the complaint a case was registered in Crime No. 36/2013 by Afzalpur Police and after investigation, the charge sheet was laid against the accused for the offences punishable under Sections 504, 506 and 307 of IPC. 3. After filing of the charge sheet the learned jurisdictional JMFC Court after complying the requirements of Section 207 of Cr.P.C. committed the case to the Court of Session as the offences are triable by the Court of Session. After receipt of the records, the Sessions Court took cognizance and after securing the accused and after hearing him the charge was framed. Since the accused pleaded not guilty and claimed to be tried. The trial was conducted. Prosecution examined nine witnesses as P.Ws.1 to 9 and got marked Ex.P-1 to 5 and also got marked M.Os.1 and 2. After closer of the evidence, the statement of the accused was recorded under Section 313 of Cr.P.C. he denied the incriminating material put against him and accused did not choose to lead any evidence on his behalf. 4. On hearing both parties to the lis, the learned Sessions Judge has passed the impugned order, where under the accused has been acquitted. Being aggrieved by the said order, the State is before this Court in this appeal. 5. 4. On hearing both parties to the lis, the learned Sessions Judge has passed the impugned order, where under the accused has been acquitted. Being aggrieved by the said order, the State is before this Court in this appeal. 5. The main grounds urged by the learned Addl. SPP are that the impugned judgment and order of acquittal is erroneous and contrary to the facts, law and material on record. He would also contend that there is corroboration of evidence of P.Ws.1, 5 and 6, the trial Court without proper appreciation of material has proceeded to acquit the accused. He further contended that recovery evidence is also sufficient to convict the accused. On these grounds he prayed to admit the appeal for a detailed consideration on merits. 6. We have carefully considered the submission and perused the records. Though the alleged incident has taken place on 17.3.2013 at about 5:00 p.m., on the Katta of Basavanna Temple and the witnesses have also categorically deposed that apart from P.Ws.5, 6 and 7 some other persons were also sitting there, and the other villagers were present near the place of incident which is a public place, the investigating officer has not examined any independent witnesses. Though, P.Ws.5, 6 and 7 have deposed with regard to the alleged incident, but admittedly they are friends of P.W.1 complainant and they belong to the same community. They did not try to pacify the quarrel or did they react in any manner, so as to prevent the accused from throwing of axe towards the complainant. The conduct of these witnesses and even their presence appears to be doubtful at the place of the incident. Even in the evidence of these witnesses there is no consistency. Be that as it may, if really the incident had taken place as alleged in the complaint, then under such circumstances definitely some independent witnesses would have heard and witnessed the alleged incident, who could have testified in the court. Evidence of P.Ws.5 and 6 indicates that they have gone to the extent of denying the presence of other persons sitting on the katta. Under the circumstances the evidence of P.Ws.1, 5 and 6 appears to be not fair, above board, trust worthy or reliable. It does not inspire confidence in us so as to accept the same as such. 7. Under the circumstances the evidence of P.Ws.1, 5 and 6 appears to be not fair, above board, trust worthy or reliable. It does not inspire confidence in us so as to accept the same as such. 7. Be that as it may, it is alleged in the complaint that the accused came to the place of incident and abused the complainant in vulgur language. But, in the evidence of P.W.1 and other witnesses they have not specially deposed about the words which have been used to prove any breach of public tranquility. In the absence of such material, accused cannot be convicted for the said offence. 8. It is true that in order to constitute an offence under Section 307 of IPC, no injuries need be caused to the victim. But, however, the prosecution has to prove that accused had an intention or knowledge of committing the murder by doing such act towards it. But, on going through the contents of the complaint and other material, it does not disclose the fact that the accused committed the said act with that intention when alleged incident had taken place and that accused threw an axe towards the complainant with any such intention. 9. The main cause for the entire episode is that the complainant is having illicit relationship with the wife of the accused. But, no witness has stated that the complainant was having an illicit relationship with the wife of the accused earlier to the incident and in that regard accused was having a grudge towards the complainant. Except the bald statement of the complainant, there is no material to show that because of said reason the accused went near the spot of the incident and tried to assault with an axe with an intention to cause the death of the complainant. As could be seen from the records the axe-M.O.1 which is said to have been thrown by the accused was lying at the place of incident till the said axe was seized by the police by drawing a mahazar as per Ex.P-2. If really, M.O.1 axe belonged to the accused, definitely when it had not hit the complainant, he would have taken it from that place immediately after the incident. 10. Further, the evidence of P.W.9, the Police Sub-Inspector discloses the fact that the complaint came to be registered at about 6:00 p.m. on 17.3.2013 as per Ex.P-1. If really, M.O.1 axe belonged to the accused, definitely when it had not hit the complainant, he would have taken it from that place immediately after the incident. 10. Further, the evidence of P.W.9, the Police Sub-Inspector discloses the fact that the complaint came to be registered at about 6:00 p.m. on 17.3.2013 as per Ex.P-1. Admittedly, the alleged incident has taken place at 05:00 p.m. The distance between the place of incident and the police station is about twelve kilometers. Without there being any evidence to show as to how the complainant went to the police station by covering twelve kilometers from the place of incident and where exactly the complaint came to be written and how much time was consumed in writing the complaint, the very registration of a complaint at 6:00 p.m., creates a doubt in the mind of this Court. If really, the alleged incident had taken place as alleged, then under such circumstances definitely other people would have gathered and they would have discussed about the incident and thereafter they might have asked the complainant to file the complaint. It requires some reasonable time, that has also not been explained in the evidence of any of the witnesses. Moreover, as could be seen from the evidence of P.W.9, though M.O.2 was recovered at the instance of the accused, no procedure has been followed as contemplated under Section 27 of the Evidence Act. If really the accused has given his voluntary statement, it should be in the language of the accused, relevant portion of such statement of the accused has to be marked and it has to be proved in accordance with Section 27 of the Evidence Act. That has also not been done in the instant case. 11. By going through the entire material produced, it indicates that a false case has been registered as against the accused. When no seizure has been made as contemplated under the law and when there is inconsistency in evidence of witnesses and there is no corroboration. The trial Court by the settled principles has given the benefit of doubt to the accused and has acquitted him. We are conscious of the proposition of law that when there are two probabilities, which arise in a case, the trial Court by exercising its discretion can accept one probability and acquit the accused by giving benefit of doubt to him. We are conscious of the proposition of law that when there are two probabilities, which arise in a case, the trial Court by exercising its discretion can accept one probability and acquit the accused by giving benefit of doubt to him. Then under such circumstances the appellate Court will be very slow in setting aside such orders. By going through material on record, we are of the considered view that there is no material to substantiate the contention raised by Addl. State Public Prosecutor as there is no material to prove the case of prosecution, then under such circumstances question of admitting the appeal and issuing notice to respondent does not arise at all. As there are no good grounds to admit the appeal as it is devoid of merit, the same is liable to be dismissed. 12. In view of above discussion made by us, the appeal is hereby dismissed. 13. In view of dismissal of the appeal, I.A.No.1/2017 also stands dismissed.