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2017 DIGILAW 964 (KAR)

SHIVAKUMAR v. STATE OF KARNATAKA

2017-06-23

B.A.PATIL

body2017
JUDGMENT : B.A. Patil, J. The present appeal has been preferred by the appellants/accused Nos. 1 to 4 & 6 being aggrieved by the judgment of conviction passed in Special Case No. 263/2010, by II Addl. District & Sessions Judge Gulbarga, by its judgment and order, dated 30-06-2011. 2. The brief facts of the case of the prosecution as per the complaint are that, one Kashinath r/o Burnal village was doing mason work and was belonging to scheduled caste. Except accused No. 6 all other accused were not belonging to the caste of the complainant. Complainant worked as a mason to construct a katta in the Masjid for a sum of Rs.200/- as a coolie, they paid Rs.100/- for having worked for construction of the katta. Still an amount of Rs.100/- was due from the accused persons towards the said construction. In that light, on 28-02-2010, when the complainant went to bring tobacco to the shop of Manjunath, all the accused persons were also present near the shop, complainant asked accused No. 1 Shivakumar to give Rs.100/- as there is due from them, Shivakumar pleaded his ignorance about the payment of Rs.100/- to the complainant. Immediately Usman Patel accused No. 2 abused the complainant by taking his name of caste and assaulted the complainant with Koita on his left hand, leg, left buttock, right thigh and caused bleeding injuries, accused No. 3 Babu Patel has kicked the complainant on trunk and caused injuries, accused No. 5 Jameer Patel assaulted with fist on the back of the complainant, accused No. 6 Mareppa abused the complainant and assaulted with the hands on the stomach of the complainant, accused No. 1 abused and slapped the complainant. Immediately Shivasharanappa and mother of the complainant came and rescued the complainant. After the incident, complainant was taken to Kamalapur Hospital in an ambulance by his mother. Subsequently as the doctor was not there, he was shifted to Government Hospital Gulbarga, subsequently on 03-03-2010 the brother of the complainant came and visited him and thereafter statement was given by the injured/complainant and on the basis of the said statement a case was registered in Crime No. 27/2010 against the accused persons and after the investigation the charge sheet came to be filed. 3. 3. After filing of the charge sheet, the learned Sessions Judge, who is the trial Judge of such offences secured the presence of the accused, after complying the requirements of Sections 208 & 209, after hearing the accused the charge was framed, since the accused pleaded not guilty and claimed to be tried, the trial was conducted. 4. The prosecution examined ten witnesses as P.Ws.1 to P.W.10 and got marked Ex.P.1 to Ex.P.13. During the course of cross-examination accused got marked Ex.D.1 and the prosecution got marked M.Os 1 to 4. After closure of the evidence, the statement of accused persons was recorded u/Sec.313 of Cr.P.C. They denied the incriminating material put against them and accused persons did not choose to lead any evidence on their behalf. 5. On hearing, the parties to the lis, the learned Sessions Judge has passed the impugned order where under the accused have been convicted. Being aggrieved by the said order the appellants are before this Court in this Appeal. 6. The main grounds urged by the learned counsel for the appellants are that, the trial Court has not applied its mind and has ignored the facts material and evidence on record. It is further contended that though there is a delay in filing the complaint the same has not been considered and appreciated by the Court below in its right perspective. He would further contend that though the complainant was accompanied by a police constable as per the evidence of P.W.8 and Ex.P.11, the complaint was not registered. Under the circumstances the evidence of such witnesses can't be believed. When there is a delay there is every possibility of material alterations in the prosecution records. This aspect has not been properly considered and appreciated by the trial Court. He would further contend that doctor - PW.8 after coming to know that PW-4 complainant has sustained the injuries has not intimated to the concerned police about medico legal case. He would further contend that, the material witnesses have turned hostile, only on the interested testimony of the complainant and his men, the trial Court has convicted the appellants/accused. He would contend that the prosecution record clearly indicates that all is not well and only with an intention to rope the accused persons, a false case has been registered. He would further contend that, the material witnesses have turned hostile, only on the interested testimony of the complainant and his men, the trial Court has convicted the appellants/accused. He would contend that the prosecution record clearly indicates that all is not well and only with an intention to rope the accused persons, a false case has been registered. When once delay has not been explained properly, then under such circumstances it clearly goes to show that the complaint is an after-thought. 7. Alternatively he would contend that, the trial Court has not struck a proper balance while awarding the sentence. At the most if at all the evidence of the prosecution, is believed, then under such circumstances the alleged offence comes under section 324 of Indian Penal Code and the minimum sentence would have been imposed by the trial Court. But the trial Court has imposed a disproportionate sentence of ten years and imposed a fine of Rs.25,000/-. The same is not sustainable in law. On these grounds he prayed for allowing the appeal by setting aside the impugned orders and requested to acquit the appellants/accused. 8. Per contra, the learned H.C.G.P. vehemently argued and contended that, the complainant has clearly deposed about the act of each accused. P.W.8 in his evidence has clearly stated that, the entry made in the hospital records is a mistaken entry and it is not deliberate. He would further contend that there is a corroboration in the evidence of prosecution witnesses. By taking into consideration the said evidence, the trial Court has rightly convicted the appellants/accused and has imposed proper sentence. Appellants/accused have not made out any good grounds, so as to interfere with the order of the trial Court. The order of the trial Court deserves to be confirmed. On these grounds, he prayed for dismissal of the appeal. 9. I have gone through the submissions made by the learned counsel for the appellants as well as learned H.C.G.P. I have also carefully perused the records. The only point which arises for my consideration is : "Whether the appellants/accused have made out a case to interfere with the order of the trial Court?" 10. In order prove the case of the prosecution, (the prosecution) it has examined ten witnesses. P.Ws.1 to 3 are the eye-witnesses to the alleged incident, but they have not supported the case of the prosecution. In order prove the case of the prosecution, (the prosecution) it has examined ten witnesses. P.Ws.1 to 3 are the eye-witnesses to the alleged incident, but they have not supported the case of the prosecution. They have been treated as hostile. Even during the course of cross-examination of these witnesses nothing has been elicited so as to substantiate the case of the prosecution. P.W.4 is the injured complainant. He has deposed that, he belongs to Madar community and he used to work as a mason. About six to seven months prior to the incident, he constructed a katta of Masjid for a coolie amount of Rs.200/- but they only paid Rs.100/- and another Rs.100/- was due. He has further deposed that, at about 10.00 p.m., he had been to the shop of one Manjunath for the purpose of bringing the tobacco there, the accused persons were also present. He has further deposed that accused No. 1 Shivak-umar was also present and he asked him, as per his instruction, he has constructed the katta and Rs.100/- is due for him and asked him to make the payment. At that time accused No. 1 by taking the name of the caste and abused with filthy language and also slapped him. Further he has deposed that accused No. 2 Usman Patel by holding the shirt with a Koita (sickle) assaulted on his left hand and as a result of the same he sustained fracture and blood was oozing and it was subsequently stitched. He has further deposed that, accused No. 3 Baba Patel assaulted him on his left knee with stick and on foot, as a result of the same, he sustained fracture. He has further deposed that accused No. 6 Mareppa assaulted him on his stomach. Accused Nos. 4 and 5 also assaulted with hands and also kicked him. By seeing the same, Dalpati Shivasharanappa and his mother Ratnamma came there and rescued him. He has further deposed that, thereafter, the ambulance was brought and he was taken to Kamalapur Hospital and from there he was taken to Gulbarga Hospital. He has further deposed that after three days, police came and recorded the statement. 11. By seeing the same, Dalpati Shivasharanappa and his mother Ratnamma came there and rescued him. He has further deposed that, thereafter, the ambulance was brought and he was taken to Kamalapur Hospital and from there he was taken to Gulbarga Hospital. He has further deposed that after three days, police came and recorded the statement. 11. During the course of cross-examination, he has admitted that about 20 to 25 shops are there at the place of incident, so many persons will be wandering there and no one belonging to his community came forward to pacify the quarrel. It has been further elicited that from his village he went to Kamalapur Hospital and there he waited for half an hour and the doctor did not come to the hospital. Further he has also admitted that, the sixth accused is the uncle and he is his enemy and there is a dispute between him and the said accused No. 6 Mareppa in respect of the landed property. 12. P.W.5 is the mother of the complainant and she is also an eye-witness to the alleged incident. She has reiterated the evidence of PW.4. It has been elicited in the cross-examination of this witness that while going to the Kamalapur Hospital in the mid way there is a police station and she has not stated before the police as per Ex.D.1. 13. P.W.6 is a recovery pancha of the clothes of the injured and also he is a panch witness to the spot mahazar Ex.P.8. This witness has not supported the case of the prosecution. He has been treated as hostile but however he has partly supported the case with regard to the recovery of articles. PW.7 is also another witness to Ex.P.8 and Ex.P.9. He has also partly supported the case of the prosecution. 14. P.W.8 is the doctor who treated the injured complainant PW.4. He has deposed that, on 02-03-2010 at about 10.45 p.m., Sri. Kashinath PW.4 brought before him by P.C. 1295 of Kamalapur police station with the history of injury due to assault, on examination he noticed a lacerated wound over the left hand, lacerated wound over the left leg and there was a fracture of upper 1/3rd of the forearm and there was also fracture of lower 1/3rd of left leg. He has also further opined that the injury Nos. He has also further opined that the injury Nos. 1 and 2 are possible if a person is assaulted with stick. 15. During the course of cross-examination, it has been elicited that on 01-03-2010 at about 10.45 p.m. injured was brought in an ambulance, the information was not send by him to the police on that day. He further admitted that, in Ex.P.12(a) the history of the case is not mentioned and he did not send any intimation to the police. It is further admitted that in Ex.P-12(a) the history of the case is not mentioned. Further he has admitted that, if a person comes for treatment with a history of injury due to assault, it is bounden duty of the medical officer to send the MLC report to the police. He has further deposed that, he has not mentioned any where in Ex.P-11 the date as 2.3.2010. He has further deposed that, he did not send any intimation to the police about the case. He has further deposed that, what is mentioned in Wound Certificate - Ex.P-1 to the effect that injured was accompanied by PC 1295, is a mistake, except that nothing has been elicited. 16. It is the specific contention of the learned counsel for the appellants that, though there is a delay in filing the complaint, the Court below has taken the cognizance and erroneously convicted the accused. Admittedly, in the instance case, the incident took place on 1.3.2010 at about 10.00 p.m. and complaint was came to be filed as per Ex.P-7 on 3.3.2010 at about 6.00 p.m. It is improbable that when the alleged incident has taken place at 10.00 a.m. on 1.3.2010 and admittedly P.W.4 along with his mother P.W.5 went to Kamalapur Hospital in an ambulance and it is also an admitted fact that before reaching the said hospital, there is a Kamalapur police station. If really, the alleged incident has taken place as alleged, then he could have definitely sent his mother P.W.5 to the police station while going to the Kamalapur Hospital. Even under the worst condition after going to the hospital, he could have sent the mother to the police station to lodge the complaint. 17. If really, the alleged incident has taken place as alleged, then he could have definitely sent his mother P.W.5 to the police station while going to the Kamalapur Hospital. Even under the worst condition after going to the hospital, he could have sent the mother to the police station to lodge the complaint. 17. The evidence of P.W.8 doctor shows that on 2.3.2010 at about 10.45 p.m., P.W.4 was brought by PC No. 1295 of Kamalapur Police Station with the history of injury due to assault and immediately he has also examined P.W.4. When P.W.4 has taken the treatment in Kamalapur Hospital on 2.3.2010 and that too when he has been accompanied by the police constable, then under such circumstances, immediately either P.W.8 could have intimated to the police by entering into MLC register or when a police constable 1295 was present he could have sent a memo of MLC about the alleged incident. In this behalf nothing has been done by P.W.8 for the reasons best known to him. During the course of cross-examination he tried to improve by saying it is mistake, but there are many other deficiencies. In this behalf the prosecution has not come up with clean and any fair explanation. 18. By going through the evidence of P.W.4, the injured witness, he has deposed that he was taken to Kamalapur Hospital and there he waited half an hour and as nobody came, he was taken to District Hospital, Gulbarga. If that were to be accepted, then under such circumstances, the evidence of P.W.8, the doctor who has treated him is going to be falsified or vice-versa, who is actually telling the truth is a mystery. When as per the case of the prosecution if P.W.4 has been treated in the Kamalapur Hospital immediately after the incident, the same would have been entered into MLC register and P.W.8 would have been intimated to the police. Thus, by going through the evidence and material on record there appears to be undue delay in lodging the complaint and issuance of FIR. There is no match between the evidence of P.W.s 4 and 8. Under the circumstances, possibility of subsequent material alterations cannot be ruled out and it indicates that everything is not fair in the case. 19. Thus, by going through the evidence and material on record there appears to be undue delay in lodging the complaint and issuance of FIR. There is no match between the evidence of P.W.s 4 and 8. Under the circumstances, possibility of subsequent material alterations cannot be ruled out and it indicates that everything is not fair in the case. 19. It is the specific defence of the accused-appellants that accused No. 6 is the uncle of complainant and there is a dispute in respect of the landed property in a Court of law and there is enmity between the accused No. 6 and complainant. From the said evidence of P.W.4, it appears that because of the previous enmity between the parties there is possibility of falsely implicating the accused persons in the alleged crime. Even during the course of cross-examination of P.W.8 it has been elicited that, if a person falls from a height of 6 to 8 feet and if his left hand and leg comes in contact with the cutter used for cutting the fodder, the injuries mentioned in Ex.P-11 are likely to happen. By going through the evidence of P.Ws-4, 5 and 8 there is no consistency and corroboration. The possibility of sustaining the injuries by other means when it is possible, then under such circumstances because of the earlier enmity false implication of the accused cannot be overruled. The evidence of P.Ws-4, 5 and 8 does not firmly establish an unified story and their versions differed with regard to alleged incident and taking the treatment and subsequently filing the complaint. The sequence of events does not tally with the case of the prosecution. 20. Be that as it may. In the instant case on hand, admittedly at the place of incident there were 20-25 shops and public were also moving, in that context P.Ws-1 to 3 were came to be examined as independent eyewitnesses. They have not supported the case of the prosecution. I am conscious of the fact that merely because the witnesses are interested, their testimony cannot be discarded, but, the circumstances on hand clearly goes to show that, there is a doubt in the case of the prosecution, unexplained delay is there and the evidence of P.Ws-4, 5 and 8 does not repose any confidence to believe it. Under the circumstances, there arises a doubt in the case of prosecution. Under the circumstances, there arises a doubt in the case of prosecution. It is well established principle of law that, if in the case of prosecution, if any doubt arises or if there are two probabilities, one beneficial to the accused has to be given. But, the trial Court without considering all these aspects has passed the impugned judgment and order erroneously without application of mind and as such it requires interference, at the hands of this Court. 21. I have perused the records and the judgment and order, it is perverse and not based upon any logic and reasons and the same is liable to be set aside. Hence, I pass the following; ORDER i. Appeal is allowed. ii. The judgment of conviction and order of sentence passed in Spl. Case No. 263/2010 dated 30.6.2011 is hereby set aside. iii. Accused Nos. 1 to 4 and 6 are acquitted of the offences punishable under Section 326 r/w Section 149 of IPC. iv. The bail bonds executed by accused persons and surety stand cancelled. v. Fine amount, if any, deposited by the appellants/accused, be refunded to them. vi. If the accused are in custody, they should be released forthwith, if they are not required in any other case.