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2020 DIGILAW 819 (KAR)

K. P. Suresha v. State Of Karnataka And Others

2020-04-21

K.N.PHANEENDRA, S.R.KRISHNA KUMAR

body2020
JUDGMENT 1. This appeal is preferred originally before the learned Single judge, against the judgment of acquittal dated 8.12.2014 passed in SC No.13/2004 on the file of the Principal Sessions Judge, Kodagu Madikeri, wherein the Trial Court has acquitted the accused persons 1 to 3 who are the respondents herein for the offence punishable under Sections 326, 325 of IPC. 2. The above Sessions Case was tried by the learned Principal Sessions Judge as a counter case to a Sessions case in SC No.29/1998. Both the cases were disposed of by way of separate Judgments simultaneously by the same Judge. In SC No.29/1998, the accused Nos.1 to 6 were charged for the offence punishable under sections 143, 147, 148, 324, 307 and 302 read with Section 149 of IPC. In the said case A4 was acquitted and A1died during the pendency of the trial and Accused Nos.2.3, 5 and 6 were convicted for the above said offences. 3. The learned Single Judge vide order dated 20.06.2016 ordered to connect this appeal to Criminal Appeal No.169/20159 (Connected with Cr.A. 49/15 and other matters). Accordingly, the matter has come before the Division Bench to hear both the matters and to pass appropriate Judgment. 4. Admittedly, there was a case in S.C. No29/98,and casein S.C.13/2004 being a counter case, before the trial Court, and this appeal being filed against the judgment of acquittal passed in S.C. No 13/2004. we have heard all the appeals together. We have specifically heard the arguments of the learned counsel for the appellant and the learned counsel for the respondents 1 to 3. We have carefully perused the evidence on the side of the prosecution and we have also perused the Judgment of the Trial Court. On careful re-evaluation of the entire oral and documentary evidence on record, the point that would arise for consideration of this court is that; 'Whether the appellant/ complainant has made out any reasonable or substantial ground to interfere with the Judgment of acquittal passed by the Trial Court'. 5. In order to answer the above said point for consideration, it is just and necessary to bear in mind the brief facts of the case and the material witnesses examined in order to prove the allegations made against the respondents beyond reasonable doubt: 6. 5. In order to answer the above said point for consideration, it is just and necessary to bear in mind the brief facts of the case and the material witnesses examined in order to prove the allegations made against the respondents beyond reasonable doubt: 6. It is quite clear from the records that a person by name K.P. Suresh the first informant (appellant herein) has lodged a report stating that he is a resident of Kudlur village, Somwarpet Taluk in Kodagu District. He was doing agriculture along with his father and mother. He has lodged a complaint on 25.12.1997 at 15.30 hours before the PSI Shanivaarsanthe Police Station making allegations that on the said date at about 11.00 a.m., in the morning when the appellant was proceeding to his land, situated in the said village, at that time, when he reached near his land, at that time, the respondents (accused persons) came from backside and particularly, the respondent No.2 Palaksha abused him with filthy language particularly hurling that the appellant has spoiled the life of his sister. By saying so, assaulted the appellant on the left side of his head with a chopper. At the same time, respondent No.3 Suresh assaulted the appellant with a chopper on his hand due to the impact of assault the appellant fell down. He suffered bleeding injury to his head and hand. Another respondent K.C. Subbegowda also assaulted him with a club on his left thigh. But swiftly, appellant rose up and snatched the said club from the hand of Subbegowda and assaulted Subbegowda and his wife Gowramma. Thereafter, he fell down and was shifted to Hospital by his mother and his relative Karigowda. 7. On the basis of the said first information, the police have registered a case in Crime No.225/1997 for the offence punishable under section 324 of IPC and dispatched the FIR to the jurisdictional Court. It is also not disputed by the complainant that the said accused No.1 Subbegowda also lodged a complaint in Crime No.224/1997 before the same police and the same was investigated and charge sheet has been filed. So far as the FIR lodged by the complainant is concerned, the police after investigation submitted a B-final report before the Civil Judge Jr. Dvn. & JMFC, Madikeri. So far as the FIR lodged by the complainant is concerned, the police after investigation submitted a B-final report before the Civil Judge Jr. Dvn. & JMFC, Madikeri. The said B-Report was challenged by the complainant, after hearing the said B-report filed by the police was rejected, cognizance was taken on the basis of the objections to the B report filed in the nature of a private complaint filed by the complainant. After recording the statements of witnesses, in the said case, the learned Magistrate has actually committed the case to the court of Sessions which in fact came to be registered as a counter case in SC No.13/2004. As noted above, the learned Sessions Judge Kodagu- Madikeri has tried both the Sessions Cases i.e., SC No.29/1998 and SC No.13/2004 simultaneously and convicted the accused persons as noted above in SC No.29/1998 and acquitted in the present case SC No.13/2004 vide separate Judgment. Though two cases were tried separately, but simultaneously, evidence has been recorded independently in both the cases, and rightly two separate Judgments have been rendered. Therefore, we are conscious of the legal aspect that whatever the evidence available so far as this case is concerned, has to be looked into for appreciation. The evidence recorded in another case cannot be looked into. Therefore, the court has to independently evaluate the evidence in this particular case so as to arrive at a conclusion whether the Judgment of the Trial Court is erroneous and the same is liable to be interfered with. 8. As per the objections filed to the B-final report, it is clear cut case of the complainant that on 25.12.1997, when the complainant was going to his paddy field in his Kudlur village, A1 to A3 and one Gowramma wife of A1 attacked the complainant with clubs and hand axe. A1 caused injury on the left side head of the complainant, A2 caused injury to the right hand of the complainant and A3 caused injury to the left thigh of the complainant after forming themselves into an unlawful assembly. The complainant sustained serious injury to his head and became unconscious and admitted to the Hospital Accused was treated at Government hospital at Shanivaarsanthe and then at Hassan. It is stated that the police have not examined any of the witnesses and have not conducted the investigation properly. The complainant sustained serious injury to his head and became unconscious and admitted to the Hospital Accused was treated at Government hospital at Shanivaarsanthe and then at Hassan. It is stated that the police have not examined any of the witnesses and have not conducted the investigation properly. Therefore, he requested this court to take cognizance for the offence punishable under section 326 of IPC and to proceed with the matter. As we have already noted that after coming to know that it is a counter case to Sessions Case No.29/1998, The learned Magistrate has committed the case to the court of Sessions. 9. In order to prove the above said allegations, the complainant examined himself as PW-1 and examined 3 witnesses as PWs.2 to 4 and got marked Exhibits P1 and P2. The accused persons did not choose to lead any defense evidence. After their examination by the court u/s.313 Cr.P.C. the court after hearing both sides, acquitted the accused persons for the offence punishable under section 325 and 326 of IPC. 10. The learned counsel for the appellant strenuously contended before the court that the evidence of PW-1 is fully corroborated from the evidence of the doctor and the doctor has also stated about the history given by the complainant. The evidence of the complainant is also supported by the other witnesses examined. Therefore, when the Trial Court has convicted the accused persons in S.C. No.29/1998 including this complainant, it ought to have convicted the respondents in connection with SC No.13/2004 also. Therefore, the Trial Court has not properly appreciated the oral and documentary evidence on record. 11. Per contra, learned counsel for the respondents submitted that, except the oral evidence of PW1, nothing is there on record to substantiate the said evidence, the doctor who conducted the preliminary examination has not been examined nor any recoveries have been made at the instance of the accused there is no effort made by the complainant to produce sufficient convincing evidence before the court. As the evidence recorded in the connected matter has not been brought on record in this case, the evidence of PW-1 alone is not sufficient merely because he is an injured person. There is no cogent and convincing evidence in order to draw an inference that the prosecution has proved the case beyond reasonable doubt. As the evidence recorded in the connected matter has not been brought on record in this case, the evidence of PW-1 alone is not sufficient merely because he is an injured person. There is no cogent and convincing evidence in order to draw an inference that the prosecution has proved the case beyond reasonable doubt. Therefore, he submitted that the Trial Court has correctly appreciated the evidence on record and acquitted the accused. Therefore, he pleaded for dismissal of the appeal. 12. In the wake of the rival contentions, we have to examine the evidence of PWs.1 to 4 and other material evidence available on record. 13. PW-1 one Kallappa is the person appears to be a formal witness. He came to know about the incident from Gangamma mother of the complainant. PW-1 has deposed that about 8-9 years back, the mother of the injured told that her son has suffered injuries. After securing an Auto, he was proceeding to the scene of offence,but, he came to know that injured Suresh being shifted to the Hospital in a Bullock cart, he went to Shanivaarsanthe hospital and seen the injured was bandaged on his head and he has suffered head injury. In the course of cross examination, he has stated that he does not know anything about the incident about any other case pending between the parties. Therefore, looking to the evidence of this witness, there is absolutely no support in any manner to the case of the prosecution. 14. PW2 is the injured eye-witness (complainant). He has actually deposed about the incident. Before the evidence of this witness and the doctors evidence PW-4 we have also examined the evidence of PW-3 who is also a formal witness. PW-3 Vedavathi has stated that PW-2 injured Suresh is her elder brother. During the year 1998, she was residing in the house of her elder sister at Hassan. After the incident, the mother of this witness came to Hassan and informed about the incident and also about the injured being admitted to Somwarpet Hospital and then to Government Hospital, Hassan. On the next day of the incident, she visited the Hospital and saw her brother who has suffered grievous injuries to his head, face and hand. The injured was not in a position to talk. She did not ask her brother about the details of the incident. On the next day of the incident, she visited the Hospital and saw her brother who has suffered grievous injuries to his head, face and hand. The injured was not in a position to talk. She did not ask her brother about the details of the incident. She has admitted that there was a case where the injured has committed the murder of the wife of the Accused No.3 Subbegowda. Except this, she has not stated anything about what exactly the information received by her with regard to the incident. She is purely a hearsay witness not at all helpful to the case of the prosecution. Therefore, what remains for consideration is the evidence of PWs.2 and 4. 15. PW-2 K.P. Suresh, is the injured eyewitness. He has re-iterated what he has stated earlier in the complaint. It is stated that on 25.12.1997, all the accused persons came from the backside when he was proceeding to his land at Kudlur village. They abused this witness saying that Chandramma, daughter of Subbegowda A1 has become pregnant because of this witness and he has refused to marry her by saying so assaulted with Kathi on the left forehead. A1 Palaksha assaulted with kathi on his right hand. A3 Suresh assaulted with a club on his left thigh. Due to the assault, he has suffered bleeding injury on his forehead and fracture injury to his right-hand thumb. Thereafter, he became unconscious and subsequently, he was shifted to Shanivaarsanthe Government Hospital. The police have recorded the statement of this witness in the Hospital. He was inpatient in the Hassan Hospital for a period of 12 days. Further, he has deposed that the police did not take any action, therefore, he filed a complaint before the court as, per Ex. P1 which is the objections filed to the B-report, as we have already referred to. He has further deposed that, when he was assaulted, none were present and nobody has seen the assault against him by the accused. In the course of cross examination, he has admitted that there was a case filed against him and others for the offence punishable under section 307 and 302 of IPC wherein one Gopala has lodged a complaint. He has also stated that due to assault, his clothes were blood stained, but the police have not taken his blood-stained clothes. In the course of cross examination, he has admitted that there was a case filed against him and others for the offence punishable under section 307 and 302 of IPC wherein one Gopala has lodged a complaint. He has also stated that due to assault, his clothes were blood stained, but the police have not taken his blood-stained clothes. Very peculiarly enough either in the examination in chief or in the cross examination, he has not produced those clothes before the court seeking referring of the said incriminating articles to FSL. He has further deposed in the cross examination that; he did not inform the doctor at the first instance that the accused persons have assaulted him. That creates a serious doubt as to why at the initial stages he has not disclosed the said fact to the doctor. He has further deposed that; he has studied upto PUC he knows reading and writing Kannada language. It is suggested that he being the neighbor of the accused he was harassing them. But the said suggestion was denied. He also says that he does not know whether the police have recovered any chopper or club from the accused, but he admitted that the police have filed the B-report on the complaint lodged by him. It is suggested that because the accused persons have filed a case against this witness and as a counter blast, he has also lodged a false complaint. He has also admitted that his lands are situated adjacent to the lands of the accused persons. In the further cross examination, he has admitted that he has not obtained and produced the medical certificate issued from the doctor at Shanivaarsanthe Hospital who treated him, though he was taken to the said doctor earlier. He has also admitted that he gained consciousness when he was at the Hospital where he was taken treatment. Therefore, on that day, at that time itself, the police must have recorded his statement. Very peculiarly, as referred to in his cross examination, earlier, he has admitted that he has not stated about the names of the assailants before the doctor for the reasons best known to him. He has also admitted that he actually made an application to the Sessions Court stating that both the incidents have occurred on the same day, time and place. 16. He has also admitted that he actually made an application to the Sessions Court stating that both the incidents have occurred on the same day, time and place. 16. It is also stated that the accused persons, Ningegowda, Chandregowda, Siddarame gouda (in SC No.29/2008) have not seen the assault on him and he do not know whether the accused by name Subbegowda was injured. He has admitted that, Gowramma wife of Subbegowda was also injured. He knows, the wife of A1 Subbegowda expired, but he does not know why she died. He denied that the incident of murder of Smt.Gowramma and injury caused to A1 Subbegowda occurred due to his assault on them. But as could be seen from the records, he has admitted the said factum in his examination-in-chief that after the accused persons assaulted him, he assaulted Subbegowda and his wife. 17. It is an admitted fact that the accused No.2 Palaksha assaulted him with a chopper on his right hand, but he has not suffered any physical injury. It is suggested to him that when himself, Ningegowda, Chandregowda, Siddaramegowda and Devaraj were assaulting Subbegowda and his wife Gowramma, one of the blow given by the accused Devaraj struck him and caused the injuries but the said suggestion was denied. As could be seen from the complaint averments and the explanation given in the objections to B-final report, it is virtually n the nature of a private complaint. He has stated that accused No.1 caused injury to him on the left side of his thigh with a club and A2 caused injury to the right hand with a chopper and A3 caused injury to his left thigh. But, admittedly, the statement recorded by the police show that the accused No.2 Palaksha has assaulted with a chopper on his hand and A1 Subbegowda assaulted on the left side thigh of this witness and A3 Suresh assaulted with the chopper on his hand. But in the evidence, he has shifted the said allegations stating that A1 has assaulted with a club on his head and caused injury and A2 Palaksha assaulted on the right hand and A3 assaulted on the left thigh. Therefore, there is a serious contradiction so far as the assault is concerned. But in the evidence, he has shifted the said allegations stating that A1 has assaulted with a club on his head and caused injury and A2 Palaksha assaulted on the right hand and A3 assaulted on the left thigh. Therefore, there is a serious contradiction so far as the assault is concerned. Admittedly, the police have not recovered any incriminating articles nor PW-2 has made any efforts to seek the indulgence of the court to order for further investigation by the police for recovery of any incriminating articles. 18. Considering the serious contradiction in the complaint made before the police and the objections to B report and the evidence and in the absence of any other eye witness, the court has not believed the evidence of PW-2. In this background, the evidence of PW-4 has to be looked into. 19. PW-4 Dr.M Rudribai, who was working as a Medical Officer at Hassan District. She has deposed that on 25.12.1997, the police Head Constable No.157 brought the injured Suresh PW-2 to the Hospital. When she enquired, the complainant stated that one Subbegowda and others assaulted him. On examination, she found one injury to his head on the left side and it was a lacerated wound measuring 14 cm x 4 cm, on the backside of the head and his right-hand thumb finger had a swelling, but there was no fracture found. She has stated that the said injury could be caused if an assault is made with a sharp-edged weapon. 20. In the course of cross examination, she has stated that she did not enquire whether the victim has already taken any treatment in the Hospital. She has not produced any medical records to show that, the information given by the injured to the doctor which usually they record it in the accident register. She has also deposed that she does not remember who has asked her to give the injury certificate as per Ex. P2, she has admitted that in the injury certificate, the date is mentioned as 6.07.1998. It bears the injury certificate has been taken after a long lapse of time that the incident happened on 25.12.1999. Ex. P2 which is marked before the court. On perusal, it contains the same date as 6.3.1999. P2, she has admitted that in the injury certificate, the date is mentioned as 6.07.1998. It bears the injury certificate has been taken after a long lapse of time that the incident happened on 25.12.1999. Ex. P2 which is marked before the court. On perusal, it contains the same date as 6.3.1999. Though it is mentioned that the victim was examined on 25.12.1997, the delay in obtaining certificate and the non-production of accident register extract and other documents in fact created a doubt in the mind of the trial court to acquit the accused. The doctor has also stated that the injury occurred to the victim could be caused by using a sharp-edged weapon. The injury No.2 could be caused by assaulting a person with a club. This also in our opinion, creates a serious doubt as it is stated in the complaint,that the accused No.2 Palaksha assaulted with a chopper on his head. But, in the evidence, he has deposed that A1 Subbegowda who was holding a club in his hand assaulted on the left forehead but in fact if at all Subbegowda assaulted him with a club on his head how an such type of injury could be caused is not explained. 21. In the objections to B-report which is marked at Ex.P1 it is admitted that, the incident happened on 25.12.1997 and he has admitted in the cross examination that he has stated that both the incidents have occurred at the same time and at the same place and a case has already been filed against him by the accused person. But he does not explain as to how Smt. Gowramma and Subbegowda have suffered injuries and how Gowramma died. Therefore, the complainant PW-2 has not come up with a clear picture as to what exactly happened on that day except stating that he only suffered injuries at the hands of the injured and he did not say anything about as to how the injuries sustained by A1 Subbegowda and his wife, but died at the spot itself. Therefore, the Trial Court has come to the conclusion that PW-2 has not come up with complete truth before the court and he has suppressed the genesis of the Case on that ground also the accused have been acquitted. Therefore, the Trial Court has come to the conclusion that PW-2 has not come up with complete truth before the court and he has suppressed the genesis of the Case on that ground also the accused have been acquitted. Therefore, except the statement of PWs.2 and 4, there is nothing on record to corroborate the evidence of PW-2 and further, PW-2 has shifted the overt act of the accused persons according to his convenience subsequently. Therefore, when the Trial Court after appreciating the oral and documentary evidence on record, has arrived at a particular view on the basis of the evidence on record which is also a possible and plausible view, such view of the Trial Court should not be substituted by the appellate court even though another view is also possible. Particularly, when the judgment of acquittal is challenged, the innocence of the accused is substantiated by the judgment of the Trial Court by giving reasons. Such judgment should not be normally interfered with by the appellate court unless there is a strong believable credible, and trustworthy evidence on record. 22. In view of the contradictions in the evidence and omission of the complainant at the initial stages to disclose the said fact before the doctor and subsequently no overt act has been made to secure the weapons or to produce the blood stained clothes before the court and not examined any of the witnesses otherwise than himself, in our opinion, the said judgment of acquittal passed by the Trial Court requires no interference. Hence, the appeal is devoid of merit and the same is liable to be dismissed. Accordingly, appeal is dismissed.