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2017 DIGILAW 936 (KAR)

Ramappa v. State of Karnataka

2017-06-14

BUDIHAL R.B.

body2017
JUDGMENT : Budihal R.B., J. 1. This is the criminal appeal preferred by the appellants/accused Nos. 1 to 4 being aggrieved by the judgment and order of conviction dated 26.02.2011 passed by the Sessions Court at Bagalkot in S.C. No. 45/2010. By the said judgment and order of conviction the appellants herein were convicted for the offences punishable under Sections 448, 341, 307, 506 read with Section 34 of the I.P.C. 2. Brief facts of the prosecution case as per the complaint averments, one Mahantesh/PW1 is the complainant in this case lodged the complaint alleging that he is staying in the address as mentioned in the complaint. Himself one Vijayalaxmi and one Ravikumar are the children born to their parents and they all married. His sister Vijayalaxmi was given in marriage to accused No. 1 of Lingapur S.K. village about 26 years back. The couple were having one female child namely Rekha. As there was a difference of opinion and dispute between the couple since from 1990, the sister of the complainant Vijayalaxmi is staying in the house of the complainant. At the time of marriage of Rekha, the daughter of the said Vijayalaxmi and accused No. 1 even though accused No. 1 was called for the said marriage, he has not attended. Therefore, Vijayalaxmi filed the case before the Family Court against the accused No. 1 and Court issued the notice to the accused No. 1 in that case. On 24.12.2009 when the complainant was in his house, all the accused persons at about 8.00 p.m. came to the house of the complainant, abused him in filthy language stating that he instigated his sister to file the case in the Family Court stating so accused No. 3 and 4 tightly caught hold the complainant and accused No. 1 who was holding the stick assaulted the complainant on his head portion and accused No. 2/Shankarappa who was holding the Jambe, he also assaulted the complainant on the head forcibly. After hearing the hue and cry, Savita, the wife of the complainant then mother of the complainant and some other persons they all rushed to the place and they pacified the quarrel. At that time, accused persons told that the complainant is saved and they will see him later. The complainant seen the incident in the light which was put to the main door of the said house. At that time, accused persons told that the complainant is saved and they will see him later. The complainant seen the incident in the light which was put to the main door of the said house. On the basis of the said complaint, case came to be registered against the appellants/accused for the said offences. 3. The charges were framed against the accused persons by the trial court after hearing both sides. Then the prosecution in order to prove its case in all examined 12 witnesses as PW1 to 12, got marked documents at Ex. P1 to P9(a) and also got marked material objects M.O. No. 1 to 4. On the side of the accused persons, no witnesses were examined nor any documents were produced. After considering the merits of the case both oral and documentary ultimately the trial court convicted the appellants/accused for the said offences. Being aggrieved by the same and challenging the legality and validity of the judgment and order of conviction passed by the trial court so also the sentence portion, the appellants are before this Court. 4. Heard the arguments of the learned counsel appearing for the appellants/accused and also the learned HCGP for the respondent/State. 5. Learned counsel made the submission that firstly though the incident said to have taken place on 24.12.2009 at 8.00 p.m., but the complaint came to be lodged on the next day i.e. on 25.12.2009 at about 4.00 p.m. He made the submission in this regard that looking to the evidence of the Doctor/PW11, she clearly stated that on 24.12.2009 at about 9.00 p.m. the injured was brought to the hospital, she has examined and the police came to the hospital and recorded the statement of the injured in the hospital. So in this connection, he made the submission that looking to Ex. P1/complaint, it is not the same complaint which is said to have been recorded in the hospital on 24.12.2009, but Ex. P1/complaint is a written complaint submitted before the police on 25.12.2009 as per the endorsement made on Ex. P1. Hence, it is his first and foremost contention the prosecution suppressed the first complaint or the statement of the injured said to have been recorded during the night on 24.12.2009 itself. It is his contention that immediately the police rushed to the hospital, have enquired with the injured, they recorded the statement of the injured. P1. Hence, it is his first and foremost contention the prosecution suppressed the first complaint or the statement of the injured said to have been recorded during the night on 24.12.2009 itself. It is his contention that immediately the police rushed to the hospital, have enquired with the injured, they recorded the statement of the injured. So it becomes the first information in the case, not Ex. P1. He submitted that in view of this evidence placed on record, Ex. P1 is hit by Section 162 of the Cr.P.C. and it cannot be treated as first information in the case at the most it can be treated as the statement recorded under Section 161 of the Cr.P.C. during investigation by the police. 6. It is also his contention that though in the complaint/Ex. P1, it is mentioned by the complainant that accused No. 2/Shankarappa was holding the Jambe and he assaulted the injured with the Jambe forcibly on the head portion and caused injuries. But there is a further statement of the complainant during investigation stating that because of the confusion he has given such a statement and the accused No. 2 or any other accused were not holding the Jambe. Learned counsel made the submission and draw the attention of this Court to the charges framed by the trial court and made the submission that there is no charge framed stating that either accused No. 2/Shankarappa or any other accused assaulted the injured with Jambe. He also made further submission that looking to the statement of other witnesses also though they have stated in their oral evidence before the trial court that accused No. 2 assaulted with Jambe and though they have stated that they have not at all stated before the trial court that accused No. 2 was not at all holding Jambe, but the evidence of PW12 is very clear that he stated consistently the witnesses have not at all stated before him that accused No. 2 was holding Jambe. Hence, he made the submission that this evidence of the prosecution side itself goes to show that there is an improvement during the course of recording the evidence stating that accused No. 2 assaulted the injured with Jambe. 7. He made further submission that so far as the injuries are concerned, the learned counsel draw the attention of this Court to the document/Ex. 7. He made further submission that so far as the injuries are concerned, the learned counsel draw the attention of this Court to the document/Ex. P8 and made the submission that looking to all the three injuries in the said certificate/Ex. P8, they are incised wounds. So also the Doctor/PW11 deposed in her evidence that these injuries cannot be caused by the weapon M.O. No. 1 and 2 and she has deposed that there is a possibility that such injuries might be caused if a person is assaulted with Jambe. Hence, he submitted that even looking to the evidence of the Medical Officer also, the case of the prosecution is not at all established with the help of the doctor's evidence. He made the submission that the motive as alleged by the prosecution that she filed a maintenance case before the Family Court and when notice was issued by the court, the accused No. 1 enraged, then with the help of other accused person he rushed to the house of the complainant and caused the alleged incident. In this connection, learned counsel made the submission that along with 313 statement the accused person has also produced the documents wherein it clearly goes to show that there is no maintenance petition filed as against any of the accused, but the wife of the complainant filed civil suit in O.S. No. 83/2009, it is for partition and separate possession in the properties. It is also his submission that the said suit came to be dismissed on 31.07.2009 for default. Hence, he made the submission that after dismissal of the said suit much later the alleged incident said to have been taken place according to the prosecution case. Therefore, the alleged motive is also not established by the prosecution that because of such maintenance suit the accused have committed the alleged offences. Hence, it is his contention that all these aspects which are material they were not at all taken into consideration by the learned Sessions Judge and the learned Sessions Judge wrongly read the evidence of the prosecution witnesses and wrongly proceeded to convict the accused persons. He submitted that perusing the entire materials on the side of the prosecution reasonable doubt arises about how the incident has taken place and who are mainly responsible for causing this incident. He submitted that perusing the entire materials on the side of the prosecution reasonable doubt arises about how the incident has taken place and who are mainly responsible for causing this incident. Therefore, the benefit of such reasonable doubt may be given to the accused persons and they may be acquitted from all the charges. 8. Per contra, the learned High Court Govt. Pleader during the course of argument made the submission that so far as the nature of the injuries and the use of the weapon is concerned, there might be some minor discrepancies in the case of the prosecution and only on the basis of that entire case of the prosecution cannot be disbelieved by this Court. It is also his submission that looking to the evidence of the prosecution witnesses, they clearly stated that complainant has been assaulted by the accused persons. When that it so and the evidence of prosecution witnesses is acceptable that there is a assault on the complainant even if there is some inconsistency in the medical evidence as well as the ocular evidence, the ocular evidence will have to be accepted by the Court. He made the submission that so far as recording of the statement is concerned, the complainant though stated to have been given a statement in the hospital, but the said statement is not at all produced, but according to the prosecution case, complaint was lodged only on 25.12.2009 by the complainant. Hence, he submitted that this aspect of the matter is taken into consideration by the trial court properly and the entire material both oral and documentary has been properly appreciated by the learned Sessions Judge and there is no illegality committed in appreciating the evidence. If the cumulative effect of all these things are looked into then the learned Sessions Judge right in coming to such conclusion. Hence, there is no ground to interfere in the judgment and order of conviction passed by the trial court. Hence, he submitted to dismiss the appeal. 9. I have perused the grounds urged in the appeal memorandum, judgment and order of conviction passed by the trial court so also I have considered the oral submission made by the learned counsel on both sides at the Bar. 10. Hence, he submitted to dismiss the appeal. 9. I have perused the grounds urged in the appeal memorandum, judgment and order of conviction passed by the trial court so also I have considered the oral submission made by the learned counsel on both sides at the Bar. 10. The first and foremost contention raised by the learned counsel appearing for the accused persons regarding the complaint, it is his contention that Ex. P1 itself is not a first information. In this connection, I have also referred to the cross-examination of PW11, wherein it clearly goes to show that regarding admission of the injured in their hospital and she examined the injured. In this connection, she has given information to the police then the police came to the hospital and they have recorded the statement of the injured. So looking to this evidence of PW11, it clearly goes to show that the statement of the injured has been recorded when the injured was getting treatment in the said hospital during the night of 24.12.2009 itself and it is not the case of the prosecution that when the injured has been referred to the District Hospital and after getting the treatment in the District Hospital again he came to their hospital on the same day. Under such circumstances, the prosecution has to explain where is the statement recorded by the police when the injured has given statement during the night on 24.12.2009 itself. It is not before the Court. So the prosecution suppressed this material and when such information has been already given police have rushed to the spot in reality and for all purpose the said statement will have to be considered as the first information. Therefore, Ex. P1/complaint which is given on 25.12.2009 at about 8.00 p.m. cannot be treated as a complaint or the first information as it is hit by Section 162 of the Cr.P.C. it can be treated at the most as a statement under Section 161 of the Cr.P.C. recorded by the Investigation Officer during investigation. This has to be explained by the prosecution satisfactorily. 11. Regarding the delay, the complaint/Ex. P1 has been lodged on 25.12.2009 though the incident said to have taken place on 24.12.2009 and it is well within the knowledge of the police who went to the hospital and in the complaint/Ex. This has to be explained by the prosecution satisfactorily. 11. Regarding the delay, the complaint/Ex. P1 has been lodged on 25.12.2009 though the incident said to have taken place on 24.12.2009 and it is well within the knowledge of the police who went to the hospital and in the complaint/Ex. P1 also, it is mentioned at the end of the complaint that he has discussed this matter deliberated with the elders and then he is lodging the complaint on 25.12.2009. This is mentioned in the said complaint itself and it goes to show that there was a deliberation with regard to lodging of the complaint. So far as the delay part is concerned, there is no explanation offered by the complainant why there is a delay in giving such complaint. Therefore, the learned counsel appearing for the appellants is justified in making submission that the delay aspect is also not properly explained by the prosecution in this case. 12. Coming to the case of the prosecution, in the complaint, it is mentioned that accused No. 1 was armed with stick, accused No. 2 was armed with Jambe and he assaulted the complainant on the head portion with the said Jambe. Learned counsel made the submission that there is a further statement of the complainant during the course of the investigation wherein he himself has stated that because of the confusion he has stated that Shankarappa assaulted with Jambe, but neither Shankarappa nor any other accused assaulted the complainant with Jambe. That might be the reason for the trial court while framing the charges that there is no mention in any one of the charges that either Shankarappa or any other accused person assaulted the complainant with Jambe. But inspite of these things even though there is no charge that the complainant was assaulted with Jambe, but the prosecution witnesses during the course of evidence firstly they have deposed before the court that the accused No. 2 assaulted the deceased with Jambe. Though it was suggested during the course of cross-examination of such witnesses that they have not at all stated before Investigation Officer regarding the use of Jambe by accused No. 2, the said suggestion has been denied by the witnesses and they still claimed that they have stated in their statement before the police about the use of Jambe by accused No. 2. But perusing the evidence of PW12/I.O., he has stated in his evidence in the cross-examination taken on Page No. 3 of his deposition that PW2, 3, 6 and 10 have not at all stated in their statement before him about the assault made with the Jambe. This evidence of PW12 makes it very clear that there is an improvement in the case of the prosecution by the witnesses PW2, 3, 6 and 10 that the complainant was assaulted with the weapon Jambe. 13. Now coming to the injuries said to have been sustained by the complainant/PW1, the injury certificate produced at Ex. P8, it goes to show that there are three injuries sustained by PW1. Looking to this Ex. P8, all the three injuries are incised wounds, it is mentioned in the said injury certificate that injury Nos. 1 and 2 are simple in nature and injury No. 3 is grievous in nature. It is mentioned by the doctor that caused by sharp heavy cutting weapon and the injuries caused about 6-12 hours prior to the examination. So looking to the injury certificate/Ex. P8 so also the oral evidence of PW11, the doctor, the injuries have been caused with a heavy sharp cutting weapon. But in the case on hand, the prosecution produced M.O. No. 1 and 2, the stick and the stone which are said to have been seized from the spot under spot mahazar. It is specifically put to the doctor/PW1 that if the object like M.O. No. 1 and 2 are used whether the injuries mentioned by her in the injury certificate may be caused. PW11 specifically gave the answer that such injuries cannot be caused by using M.O. No. 1 and 2. So this opinion of the doctor who is expert in the field also goes to show that the material object M.O. No. 1 and 2 which have been produced by the prosecution in the case are not at all used or with such material objects the injuries have not at all caused to PW1. So far as the Jambe is concerned, it is not the case of the prosecution that the accused No. 2 either hidden the said Jambe and he has given the voluntary statement and at his instance the Jambe has been seized. The Jambe has not at all been produced during the course of trial. So far as the Jambe is concerned, it is not the case of the prosecution that the accused No. 2 either hidden the said Jambe and he has given the voluntary statement and at his instance the Jambe has been seized. The Jambe has not at all been produced during the course of trial. So considering all these aspects of the matter and as submitted by the learned counsel for the appellants herein, the story of the prosecution cannot be accepted that it has happened in the manner as projected before the trial court. Considering all these aspects of the matter reasonable doubt arise in the mind of the Court as to the incident really taken place in the said manner and who are the persons actually responsible for causing the said incident. Therefore, these important material aspects were not at all taken into consideration by the learned Sessions Judge. There is a wrong reading of the evidence of the prosecution witnesses and even when the prosecutor treated some of the witnesses who turned hostile and during the course of cross-examination, he has not at all made a suggestion that any of the accused assaulted the complainant with Jambe. Under such circumstances, the learned Sessions Judge proceeded wrongly, the illegality has been committed by the learned Sessions Judge in considering the materials both oral and documentary. There is a perverse and capricious view taken by the learned Sessions Judge in coming to such conclusion. Perusing the entire materials, the appellants/accused are able to establish their defence that they are not at all responsible for the alleged incident. Hence, appeal is allowed. The judgment and order of conviction passed by the learned Sessions Judge, Bagalkot in S.C. No. 45/2010 dated 26.02.2011 is hereby set aside. The appellants/accused are acquitted from all the charges. The fine amount deposited by the appellants/accused is to be refunded to the appellants.