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2019 DIGILAW 2325 (KAR)

State of Karnataka v. Padmaraja Rao

2019-12-18

S.N.SATYANARAYANA, SACHIN SHANKAR MAGADUM

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JUDGMENT : 1. This appeal is by the State challenging the judgment and order of acquittal dated 21.10.2013 passed in Crl.A.No.64/2010 on the file of the Principal Sessions Judge, Udupi District, Udupi, reversing the judgment and order of conviction dated 20.11.2010 passed in C.C.No.3311/2009 on the file of the II Additional Civil Judge (Jr.Dn.) and JMFC, Udupi. 2. The case of the prosecution in brief are as under: The complainant B.Nagesh Nayak S/o B. Krishna Nayak had gone to Perdoor on 20.03.2009 in his Maruthi Van to purchase some articles. On his return journey, his close relatives namely, Vishwanath and Nagesh had accompanied the complainant and were proceeding as inmates in the Maruthi Van along with the complainant. When they reached Doopadakatte, the complainant stopped the Van as he was required to purchase some articles from the shop of one Amritha Kulal. The case of the prosecution is that when the complainant was proceeding towards the shop of Amritha Kulal, one Prashanth Poojary (accused No.3) started questioning the complainant in regard to informing the forest officials regarding illegal felling of trees, caught hold of complainant's collar. One Pradeep Shetty (accused No.2) and Padmaraj (accused No.1) came at the spot armed with clubs and assaulted the complainant on his left shoulder and left leg. The other accused who were present along with the accused Nos.1 and 2 also joined them and assaulted the complainant on his head and face. The case of the prosecution is that this incident took place at about 8.15 p.m. The further case of the prosecution is that on first information of CW.1, the Station House Officer of Hiriadka Police Station registered a case in Crime No. 12/2009. The Investigating Officer conducted the spot mahazar. The arms used for assault were seized, the accused were arrested and after recording the statement of witnesses, charge sheet was filed against the accused for the offences punishable under Sections 143, 147, 148, 341, 323 and 326 r/w 149 of IPC. 3. The prosecution in order to substantiate its case, examined in all 11 witnesses and got marked 10 documents and MOs.1 to 5. The accused in support of their defence, got marked documents at Exs.D-1 and D-2, while cross-examining the prosecution witnesses. The accused were examined and statements of accused were recorded under Section 313 of Cr.P.C. The accused specifically denied all the incriminating evidence attributed against them. The accused in support of their defence, got marked documents at Exs.D-1 and D-2, while cross-examining the prosecution witnesses. The accused were examined and statements of accused were recorded under Section 313 of Cr.P.C. The accused specifically denied all the incriminating evidence attributed against them. The Trial Court after examining the material on record, was of the view that the evidence of PWs.1 and 3 who are the eye witnesses would establish the guilt of the accused beyond all reasonable doubt. The Trial Court was of the view that the evidence of PW.3 corroborates the injuries sustained by the complainant and his evidence is in terms of the injuries mentioned in Ex.P-7 -wound certificate. The Trial Court has also referred to the evidence of PW.3, wherein he has identified all MOs. before the Court. The Trial Court has also referred to the evidence of Investigating Officer, who has deposed before the Court in regard to conducting the spot mahazar and seizure mahazar. The evidence of the Investigating Officer in regard to drawing spot mahazar at the place of incident as shown by PW.2 and the wooden clubs seized would establish the case of the prosecution beyond reasonable doubt. The Trial Court relied on the judgment in the case of Shamsuddin and Others vs. State of M.P. 2004 (1) Crimes 158 (SC) and by applying the principles laid down by the Hon'ble Apex Court, has proceeded to convict the accused on the premise that the evidence of the victim inspite of some minor variations would not take away the credibility of injured witness and that cannot be a ground to discard the intrinsic value of the evidence. By applying the above said principle, the Trial Court has proceeded to convict the accused for the offences punishable under Sections 143, 147, 148, 323 and 326 r/w 149 of IPC. 4. The respondents-accused being aggrieved by the judgment and order of conviction passed by the Trial Court preferred appeal in Crl.A.No.64/2010. The respondents-accused questioning the judgment and order of conviction raised several grounds and a specific contention was taken before the Appellate Court that the very presence of the witnesses namely, PWs.2 and 3 along with PW.1 at the time of alleged incident is doubtful. The accused also raised a contention before the Appellate Court that the earlier version narrated by the complainant at the first instance before the Doctor is entirely different. The accused also raised a contention before the Appellate Court that the earlier version narrated by the complainant at the first instance before the Doctor is entirely different. The respondents-accused also argued before the Appellate Court that there is delay in lodging the complaint and in view of unexplained delay in lodging FIR, inference has to be drawn that the complaint is lodged after due deliberation and consultation with the police so as to afford enough scope for manipulating evidence. 5. The Appellate Court having re-appreciated the entire evidence on record has come to the conclusion that PW.2 who is examined by the prosecution has not supported the case of the prosecution. The independent witness examined as PW.4, who is none other than the owner of the shop who was the witness to the incident has not supported the prosecution case. The Appellate Court was of the view that the complainant had narrated to the Doctor that around 25 persons had assaulted him with sticks sand talwars. But, however, while submitting the complaint, the complainant has confined the assailants to six accused persons. The Appellate Court was of the view that the overt acts of all the accused is not specifically and elaborately stated during trial. The Appellate Court was of the view that there is absolutely no iota of evidence to show which of the accused assaulted the complainant on his hand and who assaulted on his leg. The role played by accused Nos.3 to 6 is also not specific. The prosecution has failed to furnish the X-ray certificate though it is the case of the prosecution that the complainant had sustained fractures. 6. The Appellate Court has meticulously examined the evidence of PW.3 namely, Nagesh Nayak, who has also stated in cross-examination that around 20 to 25 persons had gathered at the spot and by the time he reached the spot, PW.1- complainant was already assaulted by the accused. The Appellate Court has taken a serious view in the manner in which the complaint is lodged. Though the incident is said to have taken place on 20.03.2009 at about 8.15 p.m., but the complaint is lodged on the next day i.e., on 21.03.2009. The case of the prosecution is that when PW.11 visited the Hospital, the complainant had penned down written complaint as per Ex.P-1. Though the incident is said to have taken place on 20.03.2009 at about 8.15 p.m., but the complaint is lodged on the next day i.e., on 21.03.2009. The case of the prosecution is that when PW.11 visited the Hospital, the complainant had penned down written complaint as per Ex.P-1. The prosecution in evidence has narrated that the complainant along with PW.2, PW.3 and his father had gone to the Hospital and if this complaint was already written by PW.1, nothing prevented the complainant in sending the complaint forthwith to the Police Station through any one of his relatives or through his father. There is absolutely no explanation forthcoming for non-filing of the complaint at the earliest. The Appellate Court has also come to the conclusion that the very seizure of MOs.4 and 5 which are said to be used for the offences appears to be doubtful. As per the prosecution case, PW.11 who is the ASI would visit the scene of offence on the next day and he has seized these two clubs which were found lying at the spot. PW.2 has taken said PW.11 and has shown the scene of offence, but PW.2 has not at all supported the prosecution case. PW.8 - Appu Nayak, is another panch to the spot panchanama as per Ex.P-2. The Appellate Court having examined the cross-examination has taken a view that this witness is interested witness and the same is elicited in the cross-examination wherein PW.8 has admitted in unequivocal terms that he used to take financial help from the complainant as and when required. 7. The Appellate Court having meticulously examined the evidence placed on record has recorded a finding that the reasoning assigned by the Trial Court in arriving at the conclusion that the prosecution has proved the guilt of the accused beyond reasonable doubt suffers from serious infirmities. The Appellate Court was of the view that the Trial Court was not justified in accepting such shaky evidence of the prosecution. The Appellate Court was of the view that evidence of PWs.1 and 3 who are close relatives and are interested witnesses is not at all supported by any independent witness. The Appellate Court giving benefit of doubt to the accused has proceeded to reverse the judgment and order of conviction and accordingly, allowed the appeal. 8. The Appellate Court was of the view that evidence of PWs.1 and 3 who are close relatives and are interested witnesses is not at all supported by any independent witness. The Appellate Court giving benefit of doubt to the accused has proceeded to reverse the judgment and order of conviction and accordingly, allowed the appeal. 8. The State has challenged the acquittal as one arrived at, as much by basically erroneous approach to the matter, as by non-consideration of the material evidence on record, resulting in serious miscarriage of justice. 9. Heard learned counsel for the appellant and learned counsel for the respondents. Perused the records. 10. Learned counsel appearing on behalf of the State would vehemently contend before us that the learned Sessions Judge has not properly appreciated the evidence of PW.1 - injured and also the evidence of PW.3 who is an eye witness. By relying on this material, he would argue that the material on record would clearly establish the overt acts by each and every accused persons in the commission of the offence and thereby, he would contend that the acquittal of the respondents/accused has resulted in substantial miscarriage of justice. The second contention raised by the learned counsel appearing for the State is that the testimony of the injured witness must be given due weight age and conviction could be passed on the evidence of eye witness. Marshalling his argument on these points, he would argue that the conviction arrived by the Trial Court by relying on trustworthy testimony of PW.1-injured and eye witness, who is examined as PW.3, do not warrant any interference and in that view of the matter, he would argue that the judgment and order of acquittal passed by the learned Sessions judge in Crl.A.No.64/2010 suffers from serious infirmities and would warrant interference by this Court. 11. Per contra, learned counsel appearing for the respondents/accused endeavoured to show that this is not a fit and appropriate case for interference by this Court. Learned counsel would vehemently argue that the Trial Court has proceeded to convict the respondents/accused on a very shaky evidence which was rightly interfered by the Sessions Judge in Crl.A.No.64/2010. Learned counsel for respondents/ accused would take us to several material contradictions and omissions in prosecution case. Learned counsel would vehemently argue that the Trial Court has proceeded to convict the respondents/accused on a very shaky evidence which was rightly interfered by the Sessions Judge in Crl.A.No.64/2010. Learned counsel for respondents/ accused would take us to several material contradictions and omissions in prosecution case. Buttressing her arguments, she would contend that complainant has not spoken about further statement recorded by the Investigating Officer, witnesses to seizure panchanama have not supported the prosecution and PW.9 - Doctor has not produced X-ray. She would further bring to our notice that there is inordinate delay in lodging the complaint. She would further contend that in absence of any infirmity in the appraisement of evidence by the learned Sessions Judge, the judgment and order of acquittal passed by the learned Sessions Judge would not call for any interference by this Court. 12. Having heard learned counsel on both sides and having examined the records, this Court would formulate the following points for consideration: (1) Whether the judgment and order of acquittal dated 21.10.2013 passed in Crl.A.No.64/2010 on the file of the Principal Sessions Judge, Udupi, suffers from serious infirmities and as such, warrants interference? (2) What order? 13. It is the specific case of the prosecution that PW.1 while returning from Perdoor Village in his Maruthi Van, stopped near the shop of Amritha Kulal and it is the specific case of the prosecution that PWs.2 and 3 were inmates who had accompanied PW.1-complainant. This incident has taken place on 20.03.2009 at around 8.15 p.m. PW.1-complainant was immediately taken to the Hospital and was examined by PW.9 - Doctor. PW.1-complainant has stated that around 25 persons have assaulted him and this statement finds a place in Ex.P-7 - wound certificate. Though this incident has taken place on 20.03.2009 at 8.15 p.m., the same is not intimated to the jurisdictional Police Station on the same day. As per the case of the prosecution, it is PW.11 - ASI of Hiriadka Police Station, who visited the Government Hospital, Udupi, on the next day and the complainant hands over a written complaint. It is borne out from the records that there is inordinate delay in lodging the complaint. As per the case of the prosecution, it is PW.11 - ASI of Hiriadka Police Station, who visited the Government Hospital, Udupi, on the next day and the complainant hands over a written complaint. It is borne out from the records that there is inordinate delay in lodging the complaint. If the complainant had already reduced in writing and the written complaint was available with him, there is absolutely no explanation forthcoming as to why PW.1 did not intimate the police officials on the same day when the material on record indicates that his father and PWs.2 and 3 were very much present with him in the Hospital. This unexplained delay in lodging the FIR, which is coupled with doubtful, infirm and in corroborating evidence of eye witnesses, would create doubt with regard to the very occurrence of the offence. The learned Sessions Judge while reassessing has rightly taken judicial note of this material aspect which goes to the root of the case and we have given our anxious consideration to this material aspect and we are of the view that this complaint is lodged after due deliberation and consultation so as to afford enough scope for manipulating evidence. 14. The Trial Court has proceeded to convict the respondents/accused relying on the evidence of PW.1 and PW.3. In cross-examination of PW.3, it is elicited that by the time he reached the scene of offence, the complainant was already assaulted. In that view of the matter, his statement before the police and his evidence before the Court would not carry much significance as he cannot be treated and considered as a eye witness to this alleged incident. On meticulously examining his cross-examination, we have no hesitation to hold that PW.3 is an interested witness. It is borne out in cross-examination that PW.3 is working in the complainant's elder brothers company and in this context, we are of the view that the Trial Court erred in believing in the evidence of PW.3. It was expected by the Trial Court to scrutinize the evidence of this witness with extra care and caution and it was not prudent on the part of the Trial Court to place reliance on the testimony of PW.3 and proceed to convict the respondents/accused. It was expected by the Trial Court to scrutinize the evidence of this witness with extra care and caution and it was not prudent on the part of the Trial Court to place reliance on the testimony of PW.3 and proceed to convict the respondents/accused. The evidence of PW.3 is artificial, improbable and the very presence of this interested witness at the time and place of incident is found to be doubtful. In that view of the matter, his testimony cannot carry any weight age and the Trial Court ought to have discarded his evidence. 15. PW.2 - Vishwanath Nayak, who is also cited as one of the eye witness has not supported the prosecution case. PW.4 by name Amritha Kulal, who is the owner of the shop where the alleged crime has taken place has not at all supported the prosecution case. Further, PW.8 who is the punch witness for seizure mahazar has admitted in cross-examination that he used to take financial help from the complainant as and when required. The case of the prosecution is that PW.11 - ASI visited the scene of offence along with PW.2 - Vishwanath Nayak and at his instance, the two clubs used for the alleged commission of offence are seized. PW.2 has not at all supported the prosecution case. The theory of prosecution that the weapons used for assault were seized by PW.11, appears to be quite unnatural. It is quite difficult to accept the prosecution version that the same clubs were lying at the spot even on the next day. This doubt further gets affirmed from the fact that PW.11 has not secured the signatures of panch witnesses on MOs.3 and 4. It is also borne out from the records that after seizure of the clubs, they were not produced before the Doctor for his opinion. This material lapse on the part of investigation would create the doubt of very occurrence of the alleged offence on 20.03.2009 as alleged by the prosecution. 16. The material on record also indicates that the prosecution has led two sets of evidence, each of which contradicts other. The complainant while taking treatment from PW.9 has stated that around 25 persons have assaulted him. Even PW.3 has stated that around 25 persons have assaulted PW.1. 16. The material on record also indicates that the prosecution has led two sets of evidence, each of which contradicts other. The complainant while taking treatment from PW.9 has stated that around 25 persons have assaulted him. Even PW.3 has stated that around 25 persons have assaulted PW.1. But, this statement is given a total go by in the FIR, wherein the complainant has chosen to lodge the complaint against only six accused persons. In that view of the matter, the suspicion hardens into a definite possibility that the case made in differs at least into very important particulars from that narrated in the FIR and one stated before PW.9 -Doctor. The Trial Court has virtually overlooked all the significant features of material contradictions, the differences in the account given by the prosecution witness as appearing from the FIR and hence, the learned Sessions Judge was justified in interfering with the judgment of conviction on reassessment of the entire evidence. 17. If the testimony of PW.3 and seizure of the weapons are discarded, there is nothing on record to connect the respondents/accused with the crime. The prosecution has miserably failed to prove the individual assaults and there is no clinching evidence to establish the overt acts of the accused beyond reasonable doubt. There is inordinate delay in lodging the complaint. There is material discrepancy between the statement given by PW.1 before the Doctor in FIR and the version of occurrence given by the prosecution in Court. The Trial Court does not appear to have taken into account these circumstances in considering the probabilities of the case. The Sessions Court while reversing the judgment of conviction has rightly adverted to these circumstances. 18. In that view of the matter, on appreciation and assessment of evidence on record, this Court is of the view that the testimony of eye witness and their version is not credible and acceptable. This Court is also aware of the settled proposition of law that where the judgment, which is the subject matter of appeal, is one of acquittal, this Court will not interfere with the same in exercise of its jurisdiction unless the finding of the Court below is clearly unreasonable or perverse or manifestly illegal. 19. In the absence of any infirmity in the judgment passed by the learned Sessions Judge in appraisement of evidence, we find no cogent grounds to reappraise the same. 19. In the absence of any infirmity in the judgment passed by the learned Sessions Judge in appraisement of evidence, we find no cogent grounds to reappraise the same. We are also of the view that there are no glaring infirmities in the judgment passed by the learned Sessions Judge, who has reversed the judgment and order of conviction. Since there are no substantial or compelling reasons to interfere with the judgment of acquittal passed by the learned Sessions Judge, we are of the view that the top noted appeal filed by the State is devoid of merits and accordingly, point No.1 is answered in the negative. 20. For the reasons stated supra, the appeal is dismissed. No order as to costs.