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2020 DIGILAW 750 (KAR)

G. Mohammad v. Farooq And Others

2020-03-18

ASHOK G.NIJAGANNAVAR, S.N.SATYANARAYANA

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JUDGMENT S.N. Satyanarayana, J. - The Complainant-victim in Crime No. 154/2015 registered with Vittla Police of Bantwal Circle, Dakshina Kannada, has come up in this appeal, impugning the Judgment and Order of acquittal dated 28.06.2019 in S.C. Nos. 2/2016 & 145/2018 on the file of the Principal District & Sessions Court, D.K., Mangaluru. 2. The brief facts leading to this appeal are as under: The complainant-victim PW. 1 before the Sessions Court by complaint dated 22.07.2015 which was tendered at 6.45 pm, contended that the complainant-victim, an arecanut trader in Mangaluru while on his way to his house got down from the bus near Kaniyoor village of Bantwal Taluk and was proceeding by walk to his house. At that time, it is alleged that all the accused referred to in the complaint who had formed into an unlawful assembly were hiding behind a tree on the way to his house and they accosted him on the way with talwar, sickle and clubs in their hands. 3. It is his specific case that first accused Farooq, son of Mohammad hit him with talwar and when he tried to avoid the same, he suffered grievous injuries on his right hand. At the same time, Accused No. 2-Sayyed Sharief attacked him with a sickle and subsequently other accused, namely, Abdul Kunchi, Moidu Kunchi, Sahul Hameed, Abubakkar Siddiq, Noushand and Mehamood attacked him with clubs. When he raised hue and cry, they ran from that place in car bearing registration No. KA-01-MF-4563 along with arms and clubs which were used to assault him and at the same time, victims son Abubakkar Siddiq and his brother G. Ali Moosa came to the place and they took him to Puttur Government Hospital and provided medical aid to him in the said Hospital. 4. It is in this background, complaint which was filed by him in Ex. P1 was registered in Crime No. 154/2015 with Vittla Police where after investigation, charge sheet was filed for the offences punishable under sections 143, 147, 148, 341, 506, 324, 307, 149 of IPC. Since the offence punishable under section 307 of IPC was attributed against the accused, the matter was committed to sessions by Committal Order dated 20.11.2015 and the same was registered in S.C. No. 2/2016. It is also seen that all the accused immediately could not be apprehended, hence prosecution was initiated initially against Accused Nos. Since the offence punishable under section 307 of IPC was attributed against the accused, the matter was committed to sessions by Committal Order dated 20.11.2015 and the same was registered in S.C. No. 2/2016. It is also seen that all the accused immediately could not be apprehended, hence prosecution was initiated initially against Accused Nos. 1 to 3 and so far as Accused Nos. 4 to 8 were split up and kept in abeyance. Subsequently, on their apprehension, prosecution was raised against all the said accused in S.C. No. 145/2018 and both were clubbed together and charges were framed and matter was proceeded by recording evidence on behalf of the prosecution where the complainant is examined as PW. 1, his son Aboobakkar Siddiq as PW. 2 and his brother Abdul Razak as PW. 3 and also other witnesses including the Doctor Dr. Pradeep Kumar, who examined him as PW. 14 and person who investigated the matter Mr. Prakash Devadiga as PW. 9. 5. The material on record would clearly indicate that except the accused, the other witnesses were not of much support to the prosecution, more particularly, the Doctor who gave evidence as PW. 14 has clearly opined that the injuries suffered by the complainant which are in the nature of an aberration could not have been caused by either talwar or sickle as contended by the complainant in his complaint vide Exhibit. P1. When the basic edifice of the prosecution case with reference to the incident and the manner in which the offence is alleged to have been committed itself is not being established and corroborative evidence of PW. 2 and PW. 3 with reference to time, place, presence of accused not being tallying with one another, the Sessions Court felt that there are too many inconsistencies in the evidence of material witnesses, defective medical evidence. With that, it is difficult to believe evidence of PW. 3 who made a vein attempt to support the case of his brother. 6. 3 with reference to time, place, presence of accused not being tallying with one another, the Sessions Court felt that there are too many inconsistencies in the evidence of material witnesses, defective medical evidence. With that, it is difficult to believe evidence of PW. 3 who made a vein attempt to support the case of his brother. 6. When all these inconsistencies are looked into from the angle of the defence which is taken by the accused, it is seen that there was personal enmity between first accused and complainant with reference to property matters though the same has not reached civil Court, but there was earlier criminal complaint between the complainant and accused where the complainant was made as accused in a criminal case as could be seen from Ex. D1-charge sheet which is filed against the complainant. 7. Therefore, in the aforesaid background, what could be seen is there are allegations and counter allegations between the parties and there is complaint and counter complaint which is registered pursuant to such allegations. Though allegations are quite severe in nature, the supportive evidence do not support the severity with reference to either the offence or injuries and at the same time, it would indicate that the present complaint which is filed by PW. 1 appears to be more in the nature of counterblast to complaint which was filed against him by Accused No. 1 which has resulted in the charge sheet being filed against complainant in this proceedings. 8. When the material available on record is looked into in a holistic manner, it is clearly seen that the Sessions Court has made threadbare analysis of oral and documentary evidence available on record and having found inconsistency between oral and documentary evidence, contents of the complaint, has rightly come to the conclusion that the prosecution has miserably failed to substantiate the accusations and allegations made against Accused Nos. 1 to 8 and similarly prosecution also has failed to substantiate the accusations and allegations made in the complaint which is in Exhibit. P1. 9. Under the aforesaid circumstances, the learned Sessions Judge has rightly passed the Judgment holding that the prosecution has miserably failed to establish the offence alleged against the Accused Nos. 1 to 8 and consequently by order of acquittal, dismissed the prosecution launched against Accused Nos. 1 to 8. 10. P1. 9. Under the aforesaid circumstances, the learned Sessions Judge has rightly passed the Judgment holding that the prosecution has miserably failed to establish the offence alleged against the Accused Nos. 1 to 8 and consequently by order of acquittal, dismissed the prosecution launched against Accused Nos. 1 to 8. 10. It is further seen that the Judgment rendered by the Sessions Court is accepted by the State/Complainant before the Sessions Court and has not chosen to file any appeal against the order of acquittal. However, the complainant having miserably failed to get conviction to the accused in the prosecution launched by him, is making a vein attempt to pursue the same in this appeal which cannot be permitted and accordingly this appeal filed by the complainant/victim in S.C. Nos. 2/2016 & 145/2018 does not merit admission, hence, dismissed at the stage of admission itself.