Karnataka High Court
Venkoba S/O Bhimrayappa Upper, vs The State Of Karnataka on 19 February, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 19TH DAY OF FEBRUARY, 2013
BEFORE
THE HON'BLE MR.JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL NO.3511 OF 2008
BETWEEN:
1. Venkoba S/o Bhimarayappa Uppar
2. Govindappa S/o Bhimarayappa
3. Hanumantha S/o Bhimarayappa
4. Govindappa S/o Siddappa Uppar
5. Mahadevappa S/o Ramanna Uppar
6. Mallappa S/o Lachamappa
7. Hanumantha S/o Sanna Hanumantha
8. Chidananda S/o Ramanna Uppar
9. Mudukappa S/o Hanumanhta
10.K. Hanumanthappa S/o Mudukappa Uppar
11.Nirupadi S/o Hanumantha Uppar
2
12.Basavaraj S/o Hanumantha Uppar
All are Majors, Occ: Agriculture,
R/o Gonal Village,
Taluk: Sindhanur, District: Raichur.
... APPELLANTS
(Smt.Hema L K, Advocate)
AND:
The State of Karnataka
Through Sindhanur Police Station.
... RESPONDENT
(Shri S S Aspalli, Government Pleader)
This Criminal Appeal is filed under Section 374 (2) of
Code of Criminal Procedure, 1973, praying to allow the appeal
by setting aside the judgment and order dated 17.07.2008
passed in Spl. AC (SC) No.29/2006 by the learned Principal
Sessions Judge, Raichur, and to acquit the appellants for the
offences alleged against them.
This Criminal Appeal coming on for final hearing this
day, the Court delivered the following:
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JUDGMENT
Heard the learned counsel for the appellants and the learned Government Pleader for the respondent.
2. The appellants were the accused before the Trial Court. The facts of the case are as follows:
The complainant Durgappa PW-1 and PW-2 to PW-8 are all residents of Gonal village, Sindhanoor Taluk, Raichur District and they all belong to a Scheduled Caste. Accused Nos. 1 to 18 are also residents of the same village. But they do not belong either to a Scheduled Caste or a Scheduled Tribe. But they are said to be acquainted with each other. It is the case of the prosecution that on 28.03.2006 at about 9.00 AM Shantappa, PW-11, a member of a Scheduled Caste was said to be returning from his land and while he was walking along the road near Durgamma temple of the village, accused No.1 was said to be driving a tractor and the body of the trailer is said to have brushed against PW-11, at which PW-11 is said to have 4 protested and told accused No.1 to drive the vehicle properly and to have regard for pedestrians walking along the road. This resulted in a heated exchange of words between them. This according to the prosecution was the reason for the accused on the same night at about 9.30 PM, having come to the street on which the complainant and other witnesses, namely, PW-1 to PW-8, were residing and finding them sitting near Mariyamma temple talking amongst themselves, the accused who were armed with sticks, stones, knifes and other such deadly weapons apart from accused Nos.16 to 18 carrying chilly powder, started abusing the complainant and other witnesses who were sitting there and shouted "¨ÁgÀ¯Éà ªÀiÁ¢UÀ ¸ÀÆ¼É ªÀÄPÀÌ¼É ¤ªÀÄä ¸ÉÆPÀÄÌ §ºÀ¼À DVzÉ ¤ªÀÄUÉ MAzÀÄ UÀw PÁuɸÀÄvÉÛªÉ" and saying so assaulted them with weapons which they were carrying, as a result of which, PW-1 to PW-8 have sustained injuries. At which point of time PW-9 had come and rescued them. It is claimed by the prosecution that the complainant and other injured witnesses would have been murdered if they were not 5 rescued. On the same night the injured persons proceeded to Balganoor Police Station and PW-1 had lodged a complaint as per Ex.P-1, on the basis of which the police had registered a case in Crime No.37/2006 for offences punishable under Sections 143, 147, 148, 324, 504 and 506 read with Section 149 of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC', for brevity) as well as Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Hereinafter referred to as the 'SC/ST Act', for brevity) and the injured were taken to the Government hospital for treatment. Thereafter investigation was taken up on the same day. The statement of injured persons were recorded and certain blood stained clothes which are marked as M.O.-1 and M.O.17 to M.O.-20 in the mahazar at Ex.P-3 was said to have been drawn up, at a later point of time. After recording the statements of other witnesses, accused Nos.3, 5 and 6 were arrested and interrogated. During the course of interrogation, accused No.3 is said to have made a voluntary statement and 6 pursuant to the statement he is said to have lead the Investigating Officer and others to his house and produced a knife used in the commission of the offence, which was also seized and produced before the Court. On 31.03.2006 other accused, namely, accused Nos.1, 2, 4, 7, 14, 16, 17 and 18 were arrested and they were also interrogated. Accused No.1 is also said to have made an alleged voluntary statement and has lead the Investigating Officer to his house and produced an axe allegedly used in the commission of the offence, which was also seized. However, investigation was conducted in so far as the caste of the complainant and the other injured persons were concerned, by securing a caste certificate from the Tahsildar and also the wound certificate in so far as the injuries caused to them are concerned and in making an allegation of offence punishable under the SC/ST Act. The Court then had taken cognizance of the offence alleged against the accused and after taking further steps, charges had been framed against all the 18 accused persons for the offences referred to herein above and 7 the accused having pleaded not guilty and having claimed to be tried, the prosecution examined 16 witnesses apart from marking Exs.P-1 to P-19 and M.O.-1 to M.O.-20. The case against accused No.15 abated, as he was reported dead during the proceedings. The other accused persons were examined under Section 313 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the 'Cr.P.C.', for brevity), they simply denied the circumstances as being false, though accused No.4 had sought to produce certain documents during the course of examination of the accused. Accused No.1, however contended that though they had not assaulted any of the injured persons, it is allegedly the injured persons who had come to the house of accused No.1 armed with deadly weapons at about 9.00 PM on 28.03.2006 and had assaulted accused Nos.1 to 4 and caused injuries in that regard, in which respect accused No.1 had lodged a complaint in the very police station against CW-12 who is examined as PW-11 in the present case and one Balappa had attacked them in the house of accused No.1 and on 8 the basis of which a case has been registered by the Balganoor Police Station in Crime No.38/2006 and on completion of the investigation a charge sheet has also been filed and the case is pending before the Court of Judicial Magistrate First Class, Sindhanoor. It was contended before the Trial Court that therefore it was a case and counter case, which ought to have been tried together. However, the Court below having negated the said contention, had framed the following points for consideration:
" 1. Whether the prosecution has proved beyond all reasonable doubt that on 28.03.2006 at about 9.30 PM near Maremma temple at Gonal village, these A.1 to 14 and A.16 to A.18 along with deceased A.15 had formed an unlawful assembly with common object of assaulting the members of Scheduled Caste and intentionally insulting them and in prosecution of said common object of such assembly having armed with deadly weapons like sticks, stones, axe, knife they have used force or violence and committed the offence of rioting and thereby they are guilty of the offences U/s 143, 147, 148 R/W S. 149 of IPC?9
2. Whether the prosecution further proved beyond reasonable doubt that on the above mentioned date, time and place these A.1 to 14 and A.16 to A.18 along with deceased A.15 being the member of unlawful assembly and in Prosecution of such assembly, voluntarily caused hurt to CWs.1 to 8 by dangerous weapons and thereby they are guilty of the offence U/s 324 R/w S. 149 of IPC?
3. Whether the prosecution further proved beyond reasonable doubt that on the above mentioned date, time and place these A.1 to 14 and A.16 to A.18 along with deceased A.15 being the member of unlawful assembly and in Prosecution of such assembly, attempted to commit murder of CWs.1 to 8 and thereby they are guilty of the offence U/s 307 R/w S. 149 of IPC?
4. Whether the prosecution further proved beyond reasonable doubt that on the above mentioned date, time and place these A.1 to 14 and A.16 to A.18 along with deceased A.15 being the member of unlawful assembly and in prosecution of such assembly, intentionally insulted the complainant CW.1 and others by abusing them in filthy language and provocation would cause them to break the public peace and thereby they are guilty of the offence U/s 504 R/W S.149 of IPC?
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5. Whether the prosecution further proved beyond reasonable doubt that on the above mentioned date, time and place these A.1 to 14 and A.16 to A.18 along with deceased A.15 being the member of unlawful assembly and in prosecution of such assembly, criminally intimidated the said CW.1 and others by giving threat to their life with intention to cause alarm and thereby they are guilty of the offence U/s 506 R/W S. 149 of IPC?
6. Whether the prosecution further proved beyond reasonable doubt that on the above mentioned date, time and place these A.1 to 14 and A.16 to A.18 along with deceased A.15 being not the members of either Scheduled Caste or Scheduled Tribe and knowing fully that CWs.1 and 2 to 8 are the members of Scheduled Caste, on the above mentioned date, time and place intentionally insulted or intimidated the said members of SC by abusing them by taking the name of their caste as MADIGA SULE MAKKALE with an intention to insult and humiliate them in a place within the public view and thereby they are guilty of the offence U/s 3(1)
(x) of SC and ST (POA) Act 1989?
7. What order?"
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The Court after consideration of the same has held point Nos.1 to 6 in the affirmative in so far as accused Nos.1, 3, 4 and 6 to 14 are concerned and has acquitted the other accused for the reasons assigned in the judgment and in so far as the punishment is concerned, has proceeded to sentence the said accused to rigorous imprisonment for a period of 6 months for the offence punishable under Section 148 read with Section 149 of the IPC and to rigorous imprisonment for a period of 1 year and to pay a fine of Rs.500/- each, for the offence punishable under Section 324 read with Section 149 of the IPC and rigorous imprisonment for a period of 2 years and to pay a fine of Rs.1,000/- each, for the offence punishable under Section 326 read with Section 149 of the IPC and also rigorous imprisonment for a period of 6 months for the offence punishable under Section 506 read with Section 149 of the IPC and to rigorous imprisonment for a period of 6 months and to pay a fine of Rs.500/- each for the offence punishable under Section 3 (1) (x) of the SC/ST Act. The sentences were to run 12 concurrently. It is this judgment which is sought to be questioned by the accused who have been convicted. The State, however, has not chosen to file any appeal in so far as the acquittal of the other accused are concerned.
3. The learned counsel for the appellants while taking this Court through the record would point out that the judgment of the Court below is ridden with several infirmities and would firstly point out that the very charge framed by the Court below against all the accused, jointly, without distinctly referring to the material available against each of the accused and without judicial application of mind to the charge sheet and its contents, is clearly in violation of Section 228 of the Cr.P.C. and this has created serious infirmity to the prejudice of the several accused, who have been found guilty on the basis of the evidence which has been generally tendered against accused who have been alleged with certain overt acts. The learned counsel would contend that the responsibility of framing the charge was 13 onerous on the Court and which had to be judicially considered the question of doing so and it ought to have adverted to the material on record and could not have proceeded blindly adopting the allegations made by the prosecution in framing the charges. Therefore, the entire trial would stand vitiated on account of such a lapse. It is further contended that the trial Court has convicted the appellants - accused on the interested testimony of PW-1 Durgappa, PW-2 Amarappa PW-3 Hussainappa , PW-4 Mallappa , PW-5 Shiva Gyanappa PW-6 Mukappa and PW-15 Dyavanna. All of them belong to the same community. They are all related to each other. The Trial Court has failed to consider that aspect of the matter and has failed to address the circumstance that all of them were keenly interested in implicating the appellants and seeking their conviction for the alleged offence. The Court below has also overlooked the circumstance that the very witnesses were the accused in a case registered at the instance of the present accused in Crime No.38/2006 before the very police station in 14 which the proceedings against the present appellant was initiated and that case was pending trial before the Court of Judicial Magistrate First Class, Sindhanoor and the said incident also having taken place on the same day, the Trial Court having expressed an opinion that the said case could not be treated as a counter case on the footing that the incident complained of therein had taken place at 9.00 PM whereas the present incident has taken place at 9.30 PM and that the Trial Court had misdirected itself in convicting the appellants.
4. The learned counsel for the appellants would submit that the law is well settled that in the event of a case and counter case, the manner in which the trial would have to be conducted is well settled by the Apex Court and that procedure not having been followed in the absence of any reasoning afforded by the Court below, except pointing out to the difference in time, could not have enabled to ignore the case filed by the appellants and that was admittedly pending 15 adjudication before the Court of Magistrate. The learned counsel would submit that this is the other infirmity on which the Court below has failed to address itself to the circumstances of the case, namely that there was enmity between the complainant who belonged to one community and the appellants-accused, to whom they were all inimically disposed, though the appellants did not belong to any Scheduled Caste or Scheduled Tribe.
5. The learned counsel would then point out to the fact that in so far as the complainant is concerned, it was his statement in the first instance that the incident had occurred in the street/"oni" on which they lived and this was also the evidence tendered by him at the trial. There is however a departure from this contention, though in the complaint he has stated that the incident occurred in the "oni", at the time of the trial there is a changed instance having realized that there was no street light on the "oni" and therefore, the claim of the 16 complainant to having recognized the alleged assailants, has changed his version to state that they were sitting on the "Katta" near Maremma Temple, only to assert that there was a light near the said "Katta" to enable them to identify the assailants at that time of the incident. This changed version throwing grave doubt of the very occurrence of the incident, has been lightly overlooked by the Trail Court when this was so, in respect of all the witnesses who had tendered their evidence before the Trial Court though they had given a different version in their statements in the first instance. This has been completely overlooked by the Trial Court.
6. The learned counsel for the appellants also point out that there is wide variance between the ocular evidence and the medical evidence and the Trail Court has not given any finding on this totally inconsistent aspect of the matter. As seen from the evidence of PW-10 the medical practitioner, PW-1 had suffered a contusion and an abrasion which were simple in 17 nature as per the wound certificate at Ex.P-10. In the evidence of the complainant Durgappa, accused No.6 had assaulted him on his chest, which resulted in a bleeding injury. Accused No.11 Mudakappa is alleged to have assaulted him with a club on his left leg and he had further claimed that his vest was stained with blood. There is absolutely no bleeding injury as indicated in Ex.P10 on the chest of PW-1. There is no injury whatsoever on the leg of the complainant. Therefore, the medical report and the evidence of the said complainant as regard the injuries do not tally. The Court below has overlooked this.
7. In so far as the evidence of PW-2 is concerned, he is said to have suffered four injuries as per the wound certificate at Ex.P8. But according to the doctor's evidence, the injuries 1 and 3 could be caused by a knife and injury No.4 could have been caused by a stick. But according to the evidence of PW-2, appellant No.1 had assaulted him with an axe on his head, 18 accused No.4 is said to have assaulted him with a club on his left leg. The evidence of the said witness would not be consistent, as he was not aware about the date of the incident and he is one of the accused in the complaint filed by appellant No.1 in Crime No.38/2006. He has also not stated as to which accused were holding clubs and stones. According to him, there were many other persons who have not arrayed as the accused. This witness is the brother of the husband of the niece of Shantappa. Therefore, was a witness who was planted only to ensure the conviction of the appellants. Given the nature of his inconsistent evidence and the allegation that he was assaulted on his head with an axe, when he has only suffered injuries, which could be caused by a knife and a stick, is therefore not acceptable. The Court below has glossed over this.
8. In so far as the evidence of PW-3 is concerned, accused No.8 is said to have assaulted him with a stone on his 19 chest and accused no.1 has assaulted him on his left eyebrow with an axe, thereby causing bleeding injuries. The wound certificate is at Ex.P-6. But according to the wound certificate all the injuries are simple in nature apart from one lacerated wound on the left eyebrow and two abrasions. The learned counsel would point out that if an axe was used, the corresponding injury would be a cut wound and would not be a mere abrasion or a mere lacerated wound of the nature described in Ex.P-6. Incidentally this witness is the son-in-law of Shantappa PW-11 and he is accused No.11 in the complaint filed by the appellant No.1 in Crime No.38/2006. Therefore, this is evident that he was an interested witness and planted for the sake of the case.
9. PW-4 Mallappa was said to have been assaulted with a stone by accused No.13 Nirupadi and accused No.12 Hanumanthappa on his left hand and shoulder. According to the medical practitioner this witness had received two 20 contusions on the right shoulder and elbow and there is no injury on the left hand and shoulder. This witness is incidentally the nephew of Shantappa and he has arrayed as the accused in Crime No.38/2006 and naturally he is an interested witness and also planted for the sake of this case.
10. PW-5 who was examined by PW-13 another medical practitioner has issued a wound certificate at Ex.P-12. PW-5 is said to have been found with two abrasions on the right little toe and right elbow but according to PW-5 he was assaulted by accused No.9 with a stick on right leg. There is no such injury on the right leg of this witness. This witness is also son-in-law of PW-11 Shantappa and he admits that Shantappa was the leader of their community. Therefore, he was also an interested witness.
11. In so far as PW-6 is concerned, there was an abrasion on his left knee and tenderness over the right arm in terms of the medical certificate issued. But according to PW-6 he was 21 assaulted with a stone by accused Nos.7 and 10. This witness is also an accused in the criminal case filed by appellant No.1. In his cross-examination he has admitted that his statement has not been recorded by the police. Hence the evidence of this witness would also be discrepant.
12. PW-7 has been examined by the prosecution to establish that there was a quarrel between the appellants and PW-1 to PW-6. The motive according to the prosecution being that a tractor driven by appellant No.1 had brushed against PW- 11 Shantappa in the morning as on the date of the incident. However, this witness had not stated as to which accused had assaulted which of the witnesses. He had made a general statement that all of them assaulted all the injured witnesses. Apparently, this witness who belong to the same community as the complainant and injured witnesses, was only seeking to support their case to ensure the conviction of the appellants. PW-11 Shantappa has admitted that there was a land dispute 22 between him and accused No.1, as admitted by PW-2. Though the alleged motive for the incident is claimed as the tractor driven by accused No.1 having brushed against Shantappa in the morning of the incident and that having lead to an altercation between PW-11 Shantappa and accused No.1 and the incident was retaliation to the same and the same is misleading, as it is not in dispute that there was a long standing dispute in relation to land between Shantappa and accused No.1, which possibly prompted them to endeavor the alleged attack in the incident. According to the wound certificate of PW-15 Dyavanna, there was an abrasion on his left foot and left eyebrow. According to PW-15 himself he was assaulted with a stick by accused No.15 who is dead on his left toe. The weapon used in the commission of the offence does not correspond to injury caused. This witness also belonged to the same community as the other injured witnesses.23
13 Significantly there were injuries on the appellants as well. There is no explanation forthcoming as to the reason for the injuries, which on the other hand was not far to seek, having regard to the counter case filed by the appellants in Crime No.38/2006. Apart from this, even according to the prosecution witnesses, there were several other persons apart from the witnesses examined in the case who were present at the scene and those were independent persons known to him, has been examined in the case. This would demonstrate that the entire case was stage-managed only in order to foist the false case against the appellants and to obtain their conviction for the alleged offences.
14. As seen from the complaint, the allegations against the appellants was that PW-2, 3, 4 had been assaulted with stones and sticks. There is no allegation in the complaint to support the evidence of the prosecution witnesses to the effect that they had been assaulted with axe knife and sickle. In the 24 absence of any such allegation in the complaint of any of the witnesses being armed with an axe, the allegations coming thick and fast at the trial, in so far as the employment of the said deadly weapons including an axe, is the concoction brought about by the prosecution witnesses, to make it seem that there was a serious crime committed by the appellants.
15. The learned counsel would also draw attention to the fact that while recording the statements of the accused under Section 313 of the Cr.P.C., it was necessary for the court to address each accused and bring to his attention the circumstances that appeared against him, which require an explanation. However, the Court below has thought it fit to record their statements on general questions posed to all the accused and recording their denial. This is not the spirit and object of Section 313 of Cr.P.C. and therefore there was a failure of justice in so far as the rights of the accused are concerned, which vitiates the trial.25
16. It is also contended by the learned counsel for the appellants that PW-2 and PW-3 have categorically stated that they observed the accused approaching there with deadly weapons and once they started assaulting the injured witnesses, including them, they had fallen unconscious and they regained conscious only after 8 days. But, inconsistently it is stated that PW-2 and PW-3 had accompanied PW-1 to the police station to lodge the complaint. There is no explanation forthcoming for this glaring inconsistency and thereby demonstrating that it was a false case.
17. Further, the learned counsel would also point out that in so far as accused Nos.16 to 18 are concerned, they are women folk who had been falsely implicated of aiding other accused by carrying chilly powder to throw at the injured witnesses and others. However, this accusation has not been proved even according to the Court below and they have been acquitted, though the court below has not chosen to address the 26 other infirmities in so far as the present appellants are concerned. Hence on these several infirmities apart from other lacuna, the learned counsel for the appellants would submit that the trial court was not justified in holding that the prosecution had proved its case beyond all reasonable doubt, in the face of such infirmities, which have not been explained, either by the prosecution, or the court below has assigned any reasons in overlooking the same and yet finding a case against the appellants.
18. The learned Government Pleader on the other hand has sought to justify the judgment of the Court below. In so far as the several infirmities that are pointed out by the learned counsel for the appellants, he would submit that firstly the claim that the incident has occurred, according to the complainant, in the "oni" and not on the "katta" near the Maremma temple, is not an inconsistency at all. The temple, admittedly is on the very "oni" or street and the complainant 27 having stated that they were attacked in the "oni", when they were sitting outside and later at the trial, the complainant as well as the other witnesses have stated that it was near the "katta", where there was light, is not a total different version, as sought to be made out by the learned counsel for the appellants. It is only the clarification as to the exact location and also in order to support their contention that they were in a position to identify the accused. This cannot be termed as an improvement in their version. It is an actual statement of fact and there is no difference, if the incident is said to have occurred in the "oni"
or at the "katta" near Maremma temple. The proximity is almost negligible and may differ by a few dozen feet. Hence, there is no such gross infirmity in so far as the place of incident is concerned.
19. The further contention that there is no clarity as to the any of the witnesses having properly stated as to which accused had assaulted which injured witness, which is not a requirement 28 of law and it is humanly impossible for the injured witness to identify as to which accused had assaulted which witness, when a large number of accused had attacked them. But the injured witnesses have, each specified and identified the accused who have assaulted each of them and the injuries caused by them as well as the weapon that may have been used by each of the accused. This would satisfy the requirement of proof in so far as the attack by the respective accused on the respective injured witnesses.
20. In so far as the discrepancies that are sought to be pointed out as to the wound certificates and the actual injuries suffered by the injured witnesses, this would also not lead to any gross infirmity, as it may not be denied that there were injuries found on each of the injured witnesses according to the wound certificate. Any variance with the same, it cannot be termed as negating the medical evidence that is tendered and the difference in naming the injury or the manner in which the 29 injury had occurred by the several witnesses, much is made of the differences as to the injury caused and the injury reflected in the wound certificate or even the weapon that is sought to have been used by the accused in attacking the respective injured witnesses.
21. The allegation that the complainant and the prosecution witnesses are all related to each other and hence there was a conspiracy by the complainant and the injured witnesses to implicate the appellants in a false case, cannot be a presumption that can be drawn merely because they are related to each other and that they belong to the same community or there was a dispute between the complainant and accused No.1. The complainant and other injured witnesses do belong to the same community, they are related to each other and they live on the same street, which is the reason that they were all found together when they were attacked by the accused. Hence no sustenance can be drawn by the appellants in alleging that there 30 is a conspiracy to be presumed, merely because the complainant and the injured witnesses are related to each other and belong to the same community. The wound certificates in respect of injuries caused is proof of attack having taken place and the categorical evidence of the said witnesses, including two independent witnesses who had come to the rescue of the complainant, would clinch the matter in favour of the accused.
22. The contention that the prosecution should have examined other independent witnesses who had said to be present, is not also tenable. Though there may have been other persons present, if they have not chosen voluntarily to make statement at the investigation, does not fault of the complainant or the injured witnesses and this also cannot be a ground to absolve the appellants of the crime. The allegation that the complaint does not contain particulars of the weapons used such as axe, knife and sickle and that it is only an improvement in the course of the trial, is again explained by the circumstance 31 that the complaint is lodged immediately after the incident and the complainant can only speak of what he saw or what he experienced and the fact that other witnesses have spoken of the actual accused who have assaulted them and the particular weapon used is sufficient explanation for this absence of allegation of the particular weapons used by the other accused in the complaint. The contention that the women folk, namely accused Nos.16 to 18 have been acquitted is no ground for the appellants to claim a parity of reasoning, as the allegations against them was of carrying chilly powder and there was no accusation or evidence of any such use of chilly powder and therefore the said accused having been acquitted, does not result in the appellants making out a case for acquittal, when there is ample evidence, which the Court below has appreciated in finding a case against the accused.
23. In the light of the above contentions, the accusation against the several accused would have to be proved beyond all 32 reasonable doubt. The general findings of a scuffle having taken place and to hold that each of the accused is guilty of particular overt acts having been committed against the injured, would have to be established beyond all reasonable doubt. Therefore, in the present case on hand, given the circumstances, where a large number of accused are said to have come at 9.30 PM and having attacked the complainant and other injured witnesses, would have happened in quick succession and for the complainant and other injured witnesses to identify all the accused and to state particularly as to which accused assaulted which of the injured witness, with what weapon and how, is next to impossible, this is also the case of the prosecution. In which event the presence of all the accused and all the accused having caused injuries to each of the respective accused having caused injuries to the respective injured witnesses, admittedly has not been spoken to by all the witnesses against all the accused. It is particular accusation by particular injured witness, including the complainant against particular accused, 33 which is sought to be made the brunt of the prosecution case. Therefore, it needs to be examined as to whether the prosecution has made out a case against each of the accused. Hence, every iota of evidence tendered by the prosecution gain significance, as it is only the limited evidence that is brought against each of the accused which would spell the difference between the liberty and conviction.
24. Therefore, in the light of the gross infirmities and inconsistencies in the injuries suffered by the complainant and the several injured witnesses vis-à-vis the wound certificate issued in respect of each of the injured witnesses, is not explained by the prosecution. On the other hand, accused No.1 having lodged a complaint of an attack by the complainant and his group, which is the subject matter of Crime No.38/2006, has been glossed over by the Court below, which would explain not only the difference in injuries as claimed by the complainants and other injured witnesses and the injuries that were found on 34 the appellants as well. The Court below having held that the complaint in so far as the one lodged by accused No.1 was at a different location and could not be treated as counter case is a presumption that was not warranted. It was an incident that had occurred on the same day and either the present incident, which is the subject matter of the present case, was a fall out of that attack, or the other way around. This cannot be treated as a total different case, as it was between the same groups and on the same day with little difference in time though the location may have been different. The ideal manner in which the case and counter case ought to be disposed of, has been settled by the Apex Court in the case of Nathilal v. State of Uttar Pradesh reported in 1990 SCC (Cri) 638, as rightly pointed out by the learned counsel for the appellant. When it was the case of the prosecution that there was common evidence that could be accepted in respect of the overt acts alleged against each of the accused, it was incumbent on the court below to have recorded the statements under Section 313 of the Cr.P.C. of each of the 35 accused, while bringing to the attention of each of the accused the circumstance that appeared from the material on record against each of the accused and to have sought for an explanation. That was an important step in the trial, which has been glossed over and mechanically recorded. This results in a miscarriage of justice as rightly pointed out by the learned counsel for the appellants and as pointed out further in a detailed examination of the injures of each of the injured witnesses vis-à-vis wound certificates and the discrepancies and inconsistencies found therein coupled with the absence of the mention of an axe and other deadly weapons in the complaint in the first instance and thereafter in the course of investigation the alleged seizure and recovery of the said weapons and the use therein is again doubtful as injuries caused with an axe would be certainly severe injuries whereas the injuries that are attributed to the same having been caused by the accused, are at best minor injuries. This is again a strange and significant circumstance which the Court below has glossed over. The fact 36 that there was an argument between PW-11 and accused No.1 earlier on the date of the incident, is not seriously denied and the scuffle having ensued which resulted in a case and counter case therefore has been glossed over by the Trial Court. The fact that the complainant and other injured witnesses are all close relatives and belong to a Scheduled Caste is not in dispute. The fact that the further allegation of an offence punishable under the SC/ST Act has also been invoked would be significant to demonstrate that the complainant and other witnesses were intent on ensuring the conviction of the appellants possibly seeking vengeance against them and they had the added advantage of the law being loaded in their favour under the SC/ST Act. Therefore, the Trial Court having negated the contention that the case instituted by the accused No.1 ought to be treated as a counter case, takes on significance. For all these reasons, it cannot be said that the prosecution had established its case beyond all reasonable doubt.
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Accordingly, the appeal is allowed. The judgment of the Court below is set aside. The accused are acquitted. The fine, if any, paid by the accused shall be refunded.
Sd/-
JUDGE swk