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2020 DIGILAW 1272 (KAR)

Raghavendra v. State Of Karnataka

2020-06-29

B.A.PATIL, M.G.UMA

body2020
JUDGMENT B.A.Patil, J. - Assailing the judgment of conviction and order of sentence passed by the learned I Additional District and Sessions Judge, Bagalkot, sitting at Jamakhandi (hereinafter referred to as "Trial Court") in S.C. No.26/2016 dated 29.11.2017, the accused is before this Court challenging the legality and correctness of the same. 2. The factual matrix of the case of the prosecution in brief are that deceased was addicted to bad habits and used to consume alcohol and also used to come late to the house, inspite of the advise made by the complainant. On 15.11.2015, whole day the deceased was in the house and was doing some work. At night, he left the house without informing anybody. When the complainant got up at about 06:00 a.m. on 16.11.2015, he noticed that his father was not there and under the impression that he might have gone to consume alcohol, complainant went for his work. At that time, his friend called him and informed that his father has died in the Mudhol Municipality building by sustaining injuries. Immediately complainant went to the spot and there he noticed injuries over the dead body of his father and blood was oozing from nose and mouth. Therefore, he lodged complaint with the Police. On the basis of the complaint, a case was registered against unknown person. 3. It is further case of the prosecution that subsequently P.Ws.4 to 6 went to Police Station and informed about the galata taken place on the previous night between the deceased and the accused and accused pushing the deceased and in that light, he came in contact with a pillar situated in the said building and he sustained the injuries and died. Thereafter, after investigation, charge sheet has been filed. The learned Magistrate committed the case to the Sessions Court. Sessions Court framed the charge by securing the presence of the accused. Accused pleaded not guilty, he claims to be tried and as such, trial was fixed. 4. To prove the case of the prosecution, it got examined 12 witnesses, marked 22 documents and 10 material objects. Thereafter statement of the accused was recorded by putting incriminating material as against him and during the course of crossexamination, Ex.D-1 was got marked. Accused has not led any evidence nor produced any documents. After hearing both the sides, impugned judgment of conviction and order of sentence came to be passed. Thereafter statement of the accused was recorded by putting incriminating material as against him and during the course of crossexamination, Ex.D-1 was got marked. Accused has not led any evidence nor produced any documents. After hearing both the sides, impugned judgment of conviction and order of sentence came to be passed. 5. It is the contention of the learned counsel for the appellant accused that the judgment of conviction and order of sentence passed by the Trial Court is not sustainable in law. Though the prosecution has got examined P.Ws.4 to 6 as eyewitnesses, there are contradictions in their evidence. P.Ws.4 and 5 have deposed before the Court that there was quarrel between the accused and the deceased and at that time, the accused pushed the deceased and assaulted with hands. But P.W.6 has deposed that when he pushed the deceased, the pillar of the said shopping complex came in contact and as a result of the same, he sustained injuries and died. When there is material contradiction in the evidence of these three witnesses, the benefit of doubt ought to have been given to the accused. 6. It is his further submission that the presence of P.Ws.4 to 6 at the place of incident itself is doubtful. If really they have witnessed the alleged incident, definitely they could have disclosed the said fact, when P.W.1 complainant and Police have came there at the time of drawing up of inquest mahazar. It is his further submission that even the name of these witnesses is not appearing in the inquest mahazar Ex.P- 2. It is his further submission that the conduct of these witnesses of non-disclosure of the material fact immediately, itself creates a doubt in their evidence. If really if they were present, under such circumstances, definitely they could have made hue and cry and could have gathered people and informed the Police. It is his further submission that immediately after the funeral, all the three witnesses had been to the house of P.W.1 and informed about the incident. What was the necessity to go and give the information to P.W.1 has not been properly stated by these witnesses and even P.W.1 has not informed immediately to the Police about they informing the said fact to him. Under such circumstances, the said witnesses are nothing, but fabricated as if they are the eyewitnesses. What was the necessity to go and give the information to P.W.1 has not been properly stated by these witnesses and even P.W.1 has not informed immediately to the Police about they informing the said fact to him. Under such circumstances, the said witnesses are nothing, but fabricated as if they are the eyewitnesses. It is his further submission that though no such material is available to connect the accused to the alleged crime, the Trial Court has erroneously passed the judgment of conviction and passed the sentence. On these grounds, he prayed to allow the appeal and set aside the judgment of conviction and order of sentence. 7. Per contra, the learned Additional S.P.P. vehemently argued and submitted that P.Ws.4 to 6 are the eyewitnesses. They have seen the accused and the deceased quarrelling and the deceased consuming the alcohol. The presence of the accused at the place of incident, has not been denied during the course of cross-examination. It is his further submission that the evidence disclose that accused and the deceased used to quarrel and in that light, the alleged incident has taken place and it is the accused who pushed the deceased and because of that push, his head came into contact with the pillar of the shopping complex and immediately thereafter he has died. It shows intention of the accused. It is his further submission that the evidence of P.Ws.4, 5 and 6 appears to be just and proper. Under such circumstances, the Trial Court has rightly appreciated their evidence and by accepting the same has rightly convicted the accused. There are no good grounds to interfere with the judgment of the Trial Court. The judgment of the Trial Court deserves to be confirmed. On these grounds, he prayed to dismiss the appeal. 8. We have carefully and cautiously gone through the submissions of the learned counsel appearing for the parties and perused the records, including the Trial Court records. 9. Prosecution in order to prove its case has got examined 12 witnesses. P.W.1 is the complainant. He has filed the complaint on the information received over the phone by his friend about the death of his father. Ex.P-1 has been filed, as against the unknown persons. During the course of cross-examination of this witness, nothing has been elicited so as to discard the said material. P.W.1 is the complainant. He has filed the complaint on the information received over the phone by his friend about the death of his father. Ex.P-1 has been filed, as against the unknown persons. During the course of cross-examination of this witness, nothing has been elicited so as to discard the said material. P.W.2 is the inquest mahazar panch to Ex.P-2 and seizure mahazar pancha of the clothes of the deceased, as per M.Os.1 to 6, as per Ex.P-3. P.W.3 is the spot mahazar pancha to Ex.P-6. He has also not supported the case of the prosecution. 10. P.Ws.4, 5 and 6 are eyewitnesses to the alleged incident. P.W.4 has deposed before the Court that about 2 years back, the deceased had consumed alcohol in Parvez shop and thereafter, came to the shop of accused and there he had chicken and after finishing his dinner, he thought that he should not go to the house and went to Mudhol Municipality complex and there he slept. There the deceased and the accused were quarrelling and he alongwith P.Ws.5 and 6 intimated them not to quarrel, as they have come to sleep there and if at all they want to quarrel let them go and quarrel anywhere else. At that time, it is the accused who held the shirt of the deceased and assaulted and thereafter, the deceased fell down and accused went down and when they saw, the deceased was having bleeding injury and with fear, they left the place. P.W.4 has further deposed that in the morning at 10:00 a.m. while he was going to his work, he noticed that people were talking about the murder of the deceased and P.Ws.4 to 6 went to the spot and saw and they came to know that it is the person whom the accused has assaulted last night, had died. He has further deposed that after the funeral at about 10:00 p.m., himself and other two witnesses told P.W.1 that yesterday the accused has assaulted his father and they informed the same to the Police. He has admitted the fact in the cross-examination that Parvez is his friend and so also P.Ws.5 and 6. He has further deposed that when they consume alcohol, they go and sleep in the Mudhol Municipality complex and many other persons also sleep there. He has admitted the fact in the cross-examination that Parvez is his friend and so also P.Ws.5 and 6. He has further deposed that when they consume alcohol, they go and sleep in the Mudhol Municipality complex and many other persons also sleep there. He has also further deposed that in his house, his wife, children and parents are there and they are residing together. He has further deposed that no family member will go to the Mudhol Municipality complex and there is no electricity in the said complex. He has further admitted the fact that when they consumed the alcohol and had the food, it was in a winter season and they went to the house at about 12:40 a.m. He has also further deposed that there were no weapon in the hands of the accused and he deposed that he did not felt telling the fact of deceased falling down to P.W.1 and they have not disclosed the said fact either to the Police or to any other persons till they stated before the Police. 11. P.W.5 has also reiterated the evidence of P.W.4. In his evidence, he has deposed that the accused pushed the deceased and as a result of that, he came in contact with the column of the complex and he fell down and due to fear, they went to their house. He has further deposed that he has stated before the Police about the incident. P.W.6 also deposed the same and he has also went and advised and the accused threatened him and then he went away from that place. 12. On close reading of the evidence of these witnesses, there are so many contradictions. In the evidence of P.W.4, he has deposed that accused assaulted and thereafter by holding the shirt, pushed the deceased who fell down and sustained the blood injuries. P.W.5 has deposed that when they were quarrelling, they went for pacifying and at that time, the accused assaulted and kicked and because of coming in contact of the pillar, he made a cry and fell down and P.W.6 has deposed that when they went to pacify, the accused had threatened and he went from that place. Under such circumstances, the evidence of these witnesses appears to be not true. 13. Be that as it may. Under such circumstances, the evidence of these witnesses appears to be not true. 13. Be that as it may. Even on close reading of the evidence of these witnesses, if really they have witnessed the alleged incident, then under such circumstances, definitely they could have informed P.W.1 complainant immediately. But they have not done so. Even the material placed on record indicates that the witness have come to the place at about 10:00 a.m. in the morning while going to work and at that time, the Police were present and the complainant P.W.1 was also present and at that time, they did not disclose the said fact. As per the case of the prosecution, after the funeral, they came and informed the said fact to P.W.1. But nothing has been brought on record that all of a sudden, what inspired them to go and disclose the said fact to P.W.1 and even when the said witnesses are said to have been informed the said fact to P.W.1, he in turn has not informed the Police, that too when this witness have disclosed the fact of committing the murder of his own father. Apart from that, these witnesses have not gone to the Police Station and informed the said fact and they had been to the Police Station on the next day. Under such circumstances, we are of the considered opinion that the evidence of these eyewitnesses is not trust worthy. There are so many discrepancies, contradictions and improbable versions which draw us to the irresistible conclusion that the evidence of these witnesses cannot be a basis to convict the accused. It appears that they have planted only to suit the case of the prosecution. When the evidence led by the prosecution is not reliable, the Court must look for corroboration of such evidence. Unless the witnesses are trustworthy, their version cannot be the basis for conviction of the accused. 14. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Krishnegowda and others vs. State of Karnataka, (2017) 13 SCC 98 . At para 32 and 33 it has been observed as under: "32. It is to be noted that all the eyewitnesses were relatives and the prosecution failed to adduce reliable evidence of independent witnesses for the incident which took place on a public road in the broad day light. At para 32 and 33 it has been observed as under: "32. It is to be noted that all the eyewitnesses were relatives and the prosecution failed to adduce reliable evidence of independent witnesses for the incident which took place on a public road in the broad day light. Although there is no absolute rule that the evidence of related witnesses has to be corroborated by the evidence of independent witnesses, it would be trite in law to have independent witnesses when the evidence of related eyewitnesses is found to be incredible and not trustworthy. The minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt. 33. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Bentham, "witnesses are the eyes and ears of justice". In the facts on hand, we feel that the evidence of these witnesses is filled with discrepancies, contradictions and improbable versions which draws us to the irresistible conclusion that the evidence of these witnesses cannot be a basis to convict the accused." 15. Keeping in view the ratio laid down in the above decision, if there are latches in the evidence of the prosecution, which goes to the root of the matter, then under such circumstances, the benefit of doubt has to be given to the accused. 16. The learned counsel during the course of argument submitted that he will not dispute the fact that the deceased died a homicidal death. But it is his submission that the evidence which has been produced is not cogent and acceptable and there are so many contradictions and omissions in the evidence of these eyewitnesses. We feel that there is some force in the argument advanced by the learned counsel for the appellant accused. 17. Insofar as P.W.7 is concerned, he is the Doctor, who conducted autopsy over the body of the deceased and issued postmortem report as per Ex.P-12. P.W.8 is the Police, who carried the FIR Ex.P14 and submitted the same to the jurisdictional Magistrate. P.W.9 is the scribe of the complaint. 17. Insofar as P.W.7 is concerned, he is the Doctor, who conducted autopsy over the body of the deceased and issued postmortem report as per Ex.P-12. P.W.8 is the Police, who carried the FIR Ex.P14 and submitted the same to the jurisdictional Magistrate. P.W.9 is the scribe of the complaint. P.W.10 is hearsay witness. His evidence is also not corroborated with the other evidence. P.W.11 is the PSI, who received the complaint, as per Ex.P-1 and issued the FIR, as per Ex.P-14. P.W.12 is the Investigating Officer who investigated the case and filed the charge sheet. 18. When the material evidence of P.Ws.4 to 6 and P.W.1 itself is not trustworthy and reliable, then under such circumstances, other evidence of official witness will not make further progress in the case of prosecution. In the light of discussion held above, the finding given by the Trial Court appears to be not on preponderance of probabilities. When there are vital defects involved in the case of the prosecution the accused cannot be convicted in an unconventional way, it is the duty of the Court to make an endeavour to find the truth and if the Court fails to find the truth, then under such circumstances, it amounts to nothing but failure of justice. 19. It is well settled proposition of law that let hundred criminals be let free, but one innocent should not be convicted. If that principle is applied in the present case on hand, without there being any material, the Trial Court has came to a wrong conclusion and has wrongly convicted the accused. It requires interference at the hands of this Court. 20. In the light of the discussions held by us, the appeal is allowed. The judgment of conviction and order of sentence passed by the learned I Additional District and Sessions Judge, Bagalkot, sitting at Jamakhandi in S.C. No.26/2016 dated 29.11.2017 is set aside. The appellant accused is acquitted of all the charges levelled against him. His bail bonds and surety bonds stand cancelled. The learned District Judge is directed to refund the fine amount, if he has deposited the same, on proper identification and acknowledgment. Registry is directed to send back the Trial Court records forthwith.