Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 1979 (KAR)

Shivanand v. State Of Karnataka

2019-09-11

B.M.SHYAM PRASAD, L.NARAYANA SWAMY

body2019
JUDGMENT : B.M. Shyam Prasad, J. These appeals are preferred by the complainant appellant as well as the State against the common judgement dated 21.07.2014 in Sessions Case No.51/2003 by the Hon’ble Fast Track Addl. M.A.C.T, Dharwad (for short, the Sessions Court ). The Sessions Court has acquitted the accused - respondents of the Charges for the offences punishable under Sections 307,323,324,504,506 and 109 r/w 34 of the Indian Penal Code. 2. The prosecution s case could be summarized as follows. On 19.04.2002, in a pending dispute between the management of Samyukta Karnataka and its employee (a workman) before the Assistant Labour Commissioner, Hubli, the accused No.1 (an office-bearer and member of a Labour Union), assisted by the accused No.2 (another office-bearer and member of a Labour Union) was cross-examining PW3, the Manager on the rolls of the management of Samyukta Karnataka. The complainant [PW1] was on record for the management as an Advocate. In the course of such cross- examination, the complainant [PW.1] objected to the accused No.1 putting certain questions to PW3 as being irrelevant. The accused No.1 being irked by such objections, shouted at him saying, you non-sense, get out. The complainant [PW1] requested the Presiding Officer to take suitable action against the accused No.1 for his reactions. The accused No.2, who was sitting amongst the litigants, threw a plastic chair at the PW1 and assaulted him on his chest and shoulder. The accused No.1 was instigating the accused No.2 saying that the complainant [PW1] should not be spared and he must be taught a lesson. The accused No.2 so instigated by the accused No.1 tried to strangulate the complainant [PW1] intending to kill him. The Presiding Officer [PW9], the staff of the office, other advocates and litigants in the Court Hall intervened and pulled the accused No. 2 away from the complainant [PW1]. But, for the intervention as aforesaid, the accused No.2 would have strangulated the complainant [PW1), killing him. 3. The defense of the accused, as can be discerned from the cross-examination of different witnesses, including the complainant [PW1] and the presiding Officer [PW9], is that the accused are widely recognized office bearers of different labour organizations/unions, and the complaint is lodged because of grouse harboured against them by the complainant and the others. 3. The defense of the accused, as can be discerned from the cross-examination of different witnesses, including the complainant [PW1] and the presiding Officer [PW9], is that the accused are widely recognized office bearers of different labour organizations/unions, and the complaint is lodged because of grouse harboured against them by the complainant and the others. It is suggested to these witnesses that the accused represents different workmen who had initiated different proceedings against organizations like Samyukta Karnataka and other establishments and the complainant [PW1] and his Senior [PW5] were on record as advocate for these organizations and hence there was ill-will against the accused. It is also suggested to PW3, a witness examined on behalf of the management of Samyukta Karnataka, that there was connivance to launch false proceedings against the accused. 4. The jurisdictional Police has initiated proceedings against the accused with the registering of the First Information Report lodged by the complainant [PW1] immediately after the occurrence, and as admitted by him at the instance of his Senior [PW5]. The jurisdictional Police registered an FIR against the accused for the offences punishable under Sections 307,323,324,504 and 506 r/w. Section 34 of IPC. After completing investigation, the Jurisdictional Police have filed Charge sheet against the accused for the offences punishable under Sections 307,323,504, and 109 r/w. 34 of the Indian Penal Code. On 18.08.2005, the Sessions Court framed Charges against the accused for the offences punishable under Sections 504,323,307 and 109 of IPC. However, the charges were altered on 24.6.2014 for offences under Sections 504,323,324,307,109 and 506 r/w 34 of IPC. However, the accused did not plead guilty to the charges, and they were asked to be tried. 5. The prosecution in order to bring home the guilt of the accused has examined the complainant as PW1 and other witnesses are examined as PW2 to PW13. The prosecution has marked different documents as Ex.P1- P11, which include the First Information Report, the spot panchnama, signatures of witnesses(s), deposition, order sheet of the Assistant Labour Commissioner, wound certificate, report of P.C, report of H.C, letter, etc, and the plastic chair was marked as M.O.1. The prosecution has marked different documents as Ex.P1- P11, which include the First Information Report, the spot panchnama, signatures of witnesses(s), deposition, order sheet of the Assistant Labour Commissioner, wound certificate, report of P.C, report of H.C, letter, etc, and the plastic chair was marked as M.O.1. After closure of the prosecution s side, the statements of the accused are recorded under Section 313 of Cr.P.C., and they have denied the evidence against them, but, have filed their statements in writing under Section 313 of Cr.P.C. The accused have confronted different documents to the witnesses, which are marked and produced as Exs.D.1 to D.22, and these documents includes the order sheet, court hall sketch, signatures, statement of witnesses, register of furniture and other articles, letters, and notices, etc. 6. The Sessions Court, on appreciation of the evidence placed on record by the prosecution to bring home the guilt against the accused for the offences punishable under Sections 307,323,324,504,506 and 109 r/w. Section 34 of IPC, has concluded that the prosecution has failed to establish its case against the accused beyond reasonable doubt. The Sessions Court has opined that a possible skirmish during the proceedings before the Presiding Officer of the Labour Court is exaggerated by the complainant and the other witnesses because of the antecedents between them and the accused, to initiate proceedings for charges as severe as attempt to commit murder. The Sessions Court is cognizant of the undisputed fact that the accused are widely recognized as Office bearers/members of the different Labour Union/Association which espouse the cause of different Workmen employed with the Establishment represented by the complainant [PW1] and his senior colleague [PW5]. The Sessions Court has also opined that only those witnesses who could have spoken against the accused have been examined, but those who could have spoken about the skirmish from the accused s perspective have not been examined though cited as witnesses. The Sessions Court has further opined that the evidence on record indicates that there is an effort to project a particular view point, and therefore there is doubt about the accused being culpable. As such, the accused are entitled for acquittal. 7. The Sessions Court has further opined that the evidence on record indicates that there is an effort to project a particular view point, and therefore there is doubt about the accused being culpable. As such, the accused are entitled for acquittal. 7. The questions that arise for consideration in these appeals are: (a) Whether the Sessions court is justified in its conclusion that the witnesses have exaggerated a rencounter during the conduct of the proceedings before the Presiding Officer, Labour Court on 19.04.2002 and that the accusation against the accused for offences under Sections 307,323,504,109 r/w 34 of the IPC is not proved beyond reasonable doubt. (b) Whether the complainant - appellant is able to make out substantial and compelling reasons for this Court to interfere in this appeal. 8. The case of the prosecution is that on 19.04.2002, when a proceeding under the provisions of the Payment of Gratuity Act,1972 was underway before the Presiding Officer, Labour Court, the accused No.2 assaulted the complainant [PW1], and he also attempted to kill by strangulation. Though many witnesses have been examined in support of the prosecution s case, the important witness will be the Presiding Officer who is examined as PW9. This witness has stated that after the alleged occurrence he had sent information in writing as per Ex.P7 to the jurisdictional police. The content of the complaint has been extracted by the Sessions Court in its judgment. In this statement in writing [Ex.P7], it is recorded by PW9 that when the accused No.1 was cross-examining PW3, there was heated exchange of words between the accused No.1 and the complainant (PW1), and this heated exchange of words turned unruly when accused No.2, who was sitting in the gallery for the public, intervened. The situation could not be controlled. Further, he has written that he was of the opinion that the complainant felt hurt both physically and emotionally by this turn of events. 9. This statement in writing by the Presiding Officer is very significant. The Presiding Officer [PW9] would be a third party, and his account of what transpired would therefore be an independent account of the incident immediately after the incident. 9. This statement in writing by the Presiding Officer is very significant. The Presiding Officer [PW9] would be a third party, and his account of what transpired would therefore be an independent account of the incident immediately after the incident. The statement [Ex.D7] does not mention the ingredients to bring in the guilt of the accused either for assault or attempt to commit murder, and this statement only mentions heated exchange between the complainant [PW1] and the accused No.1, and this exchange turning unruly with the intervention of accused No. 2 which could not be controlled by the Presiding Officer. This statement, as rightly concluded by the Sessions Court, indicates that there could be an exaggeration only to inculpate the accused. 10. The situation in the Court Hall during the proceedings must have been really vitiated for the complainant [PW1] and the accused No.1 to get into a skirmish and allow it to get out of control. Therefore, the reasons for the situation leading up to the alleged assault and attempt to commit murder, in the considered opinion of this Court would be material. However, none of the witnesses, including the Presiding Officer (PW9), is able to state what was the line of cross-examination, which was so offensive that it ultimately lead to the alleged assault and attempt to murder. 11. The Presiding Officer and the witness, who are all lawmen, are categorical that nothing was recorded in the proceedings of the case as regards the question asked and the objections raised. These witnesses only state that the Presiding Officer recorded that there was a heated exchange between the accused and the complainant which could not be controlled and therefore, the proceedings was adjourned. The Sessions Court has also opined that the prosecution is not able to establish the reason for heated exchange of words between the accused No.1 and the complainant [PW1] inter alia because none of the witnesses have been able to state what was the specific reason for exchange of words. The prosecution s failure to place on record the reasons to establish the cause for the occurrence during the proceeding could be significant, and creates doubt about the prosecution s case against the accused. 12. The prosecution has examined PW.1, PW.3, PW.4, PW.7 and PW.8 as eye witnesses to the incident. The prosecution s failure to place on record the reasons to establish the cause for the occurrence during the proceeding could be significant, and creates doubt about the prosecution s case against the accused. 12. The prosecution has examined PW.1, PW.3, PW.4, PW.7 and PW.8 as eye witnesses to the incident. The Sessions Court has discounted the evidence of the complainant [PW1] on the grounds of exaggeration and improvements in his evidence. As observed by the Sessions Court this witness has spoken about the accused No.2 repeatedly assaulting him at the instigation of accused No.1. But, this witness s assertion that he suffered injuries and there was an attempt to kill him by strangulation cannot be believed because the same is not supported by medical evidence, and also because the witness has improvised his evidence to justify the accusation against the accused. The witness in the chief examination has stated that the accused No.2 threw a chair at him, but in his cross-examination he has stated that the accused No.2 hit him repeatedly with the chair. This witness has also not spoken about any prior confabulation between the accused before the alleged assault. On reading the evidence of this witness, this Court is of the considered opinion that the Sessions Court has rightly concluded that this witness is inconsistent. 13. The other crucial witness is PW3, who is the manager of the employer being sued in the proceedings during which there is heated exchange between the complainant (PW1) and the accused No.1. He is categorical in his statement that, but for the objections by the complainant (PW1), the cross- examinations would have proceeded smoothly. This statement is important because it bears testimony to the fact that the accused No.1 was conducting the cross examination, and he did not harbor any intention of disrupting the proceedings or assaulting the complainant (PW1). Further, the Sessions Court has scrutinized the evidence of this witness in the light of the admitted fact that his Establishment was being prosecuted by about 300 workmen who were terminated, and these workmen were represented by accused No.1 in the proceedings initiated by them as well as the admitted fact that the complainant and his senior colleague, PW.5 were on record for the Establishment. It is in this background that the Sessions Court has concluded that this witness s evidence insofar as the alleged assault and the attempt to commit murder could be to help the employer and his lawyer. This appreciation of the evidence by this witness, for the foregoing cannot be called improper. 14. The other witnesses who have spoken about the incident are PW.4, PW.5, PW.7 and PW.8 (these witnesses are advocates and a litigant present at that time attending the Court for their respective proceedings) and PW.10, an official of the Labour Department. The advocates are PW.4, PW.5 and PW.7, and PW.8 is Dr. Yallansa Narayansa Ilakal, an Employer who asserts that he was in the Court hall at the time of the occurrence. PW.10 is an official of the Labour Department. The Sessions Court has examined the evidence of the advocates in the light of the admitted fact that the day after the incident, the Advocates Association, Hubli boycotted the Courts demanding the arrest of the accused. 15. This witness, PW4 has stated that he did not witness the initial exchange of words between the complainant [PW1] and the accused No.1 or the later escalation. The witness has stated that when he entered the Court hall, the accused No.2 was trying to strangulate PW.1, and he and few other advocates along with PW.8 tried to intervene and separate the accused from PW.4. Further, the witness has stated that a broken chair was found lying in the premises. However, neither the attempt to strangulate is corroborated by medical evidence nor the testimony to assault using the chair is corroborated by the evidence as regards the chair, MO.1. The medical evidence does not speak about ligature mark or other injury round the neck, and admittedly, the MO.1 did not have the requisite number to identify the chair as the property of the Labour Court. The testimony of this witness when thus examined does not inspire confidence, and the Sessions Court has rightly concluded that this witness could be exaggerating to help his colleague. 16. The Sessions Court has rightly not relied upon the evidence of PW5 (Senior Colleague of PW1, the complainant) in the light of the admitted fact that this witness reached the Court hall much after the exchange between the accused and the complainant-PW1. 16. The Sessions Court has rightly not relied upon the evidence of PW5 (Senior Colleague of PW1, the complainant) in the light of the admitted fact that this witness reached the Court hall much after the exchange between the accused and the complainant-PW1. Therefore, any say of the witness about the incident could only be hearsay as rightly concluded by the Sessions Court. Dr. Yallansa Narayansa Ilakal [PW8] asserts that he is an employer and was present in the Court hall at the time of occurrence. He has stated that he had been to the Labour Court to attend to one of the cases against his establishment, and the case was instituted by a workman and represented by accused No.1. He has also admitted that accused No.1 was appearing for number of workmen who had instituted similar cases against his Establishment. He was represented in these cases by the office of PW.1. In the light of these circumstances, and the contradiction in the say of this witness as to how the accused No.2 allegedly assaulted PW4, the Sessions Court is justified in opining that this witness could also be speaking in support of his legal team. 17. The other witness PW7, admittedly an office bearer of the Advocate s Association, has stated that he had gone to the Labour Court to collect copies on behalf of his client, and because the staff informed him that they could not give the documents because the Court was in session, he was sitting in the Court hall when the incident happened. The evidence of this witness does not inspire confidence as concluded by the Sessions Court because the testimony is wanting in material details. He is unable to state the details of the applications made by him for securing copies of the documents as stated by him. He is a member of the Committee which decided to boycott Courts on 20.04.2002, and his evidence is an improvement of the statement given before the police. This witness s testimony will also not help the prosecution in sustaining its case against the accused because his testimony could also, given the circumstances, be an exaggeration. If the eye witnesses account are shown to be possible exaggerated versions unsupported by indisputable evidence and in contradiction with the inter se testimonies, there would be no reason for interference with the impugned judgment. 18. If the eye witnesses account are shown to be possible exaggerated versions unsupported by indisputable evidence and in contradiction with the inter se testimonies, there would be no reason for interference with the impugned judgment. 18. It is settled that the appellate Court in appeals will not interfere with the judgement of the trial Court, unless it is shown that there are substantial and compelling reasons for interference. The Hon’ble Supreme Court in Ghureylal vs. State of UP, (2008) 10 SCC 450 has held as follows: 1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has very substantial and compelling reasons for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when: (i) The trial court's conclusion with regard to the facts is palpably wrong; (ii) The trial court's decision was based on an erroneous view of law; (iii) The trial court's judgment is likely to result in "grave miscarriage of justice"; (iv) The entire approach of the trial court in dealing with the evidence was patently illegal; (v) The trial court's judgment was manifestly unjust and unreasonable; (vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc. (vii) This list is intended to be illustrative, not exhaustive. 2. The Appellate Court must always give proper weight and consideration to the findings of the trial court. 3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused . In the light of the aforesaid discussion, and the appreciation of the evidence by the Sessions Court, no substantial and compelling reasons are established for interference. Therefore, the appeals are dismissed confirming the judgement dated 21.07.2014 in S.C.No.51/2003 on the file of the Fast Track Addl. MACT., Dharwad.