Karnataka High Court
The State Of Karnataka vs Vikram Bhat on 4 February, 2014
Author: K.Bhakthavatsala
Bench: K.Bhakthavatsala
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4TH DAY OF FEBRUARY 2014
PRESENT:
THE HON'BLE Dr. JUSTICE K.BHAKTHAVATSALA
AND
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
CRIMINAL APPEAL No.542/2010 (A)
BETWEEN:
THE STATE OF KARNATAKA
BY SUB INSPECTOR OF POLICE
UPPINANGADY POLICE STATION
DAKSHINA KANNADA DISTRICT. ...APPELLANT
[BY SRI.B.T.VENKATESH, STATE PUBLIC PROSECUTOR-II]
AND:
1. VIKRAM BHAT
AGED 27 YEARS
S/O. GANESH BHAT
RESIDING AT HARINIVASA HOUSE
34TH NEKKILADY VILLAGE
PUTTUR
DAKSHINA KANNADA DISTRICT.
2. GURUPRASAD.P.
AGED 25 YEARS
S/O. KRISHNA BHAT
RESIDING AT ADARSHA NAGAR
NEAR PANACHAYAT QUARTERS
34TH NEKKILADY VILLAGE
2
PUTTUR
DAKSHINA KANNADA DISTRICT.
3. JAYANTHA
AGED 24 YEARS
S/O. BABU MOOLYA
RESIDING AT MADLA HOUSE
MADNOOR VILLAGE
PUTTUR
DAKSHINA KANNADA DISTRICT.
4. BALAKRISHNA
AGED 33 YEARS
S/O. ANNAPPA POOJARY
RESIDING AT DOLI HOUSE
KUDMAR VILLAGE
PUTTUR
DAKSHINA KANNADA DISTRICT.
5. YOGESH
AGED 29 YEARS
S/O. KABBU
RESIDING AT MUNDALTHADKA HOUSE
SAVNOOR VILLAGE
PUTTUR
DAKSHINA KANNADA DISTRICT.
6. RAMESH.K.
AGED 40 YEARS
S/O. NARAYANA POOJARY
RESIDING AT BAREMELU HOUSE
KUDMAR VILLAGE
PUTTUR
DAKSHINA KANNADA DISTRICT.
7. P.SHANTHARAMA SHENOY
AGED 34 YEARS
S/O.P.BALAKRISHNA SHENOY
RESIDING AT NEAR GANDHI PARK
OPPOSITE JAINARA BASADI
UPPINANGADY VILLAGE
PUTTUR TALUK
3
DAKSHINA KANNADA DISTRICT.
...RESPONDENTS
[BY SRI.S.K.ACHARYA, ADVOCATE FOR R-1 TO R-6 (ABSENT)
SRI.S.B.NAYAK, ADVOCATE FOR R-7 (ABSENT]
*****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
(1) & (3) OF THE CR.P.C. WITH A PRAYER TO GRANT LEAVE
TO FILE AN APPEAL AGAINST THE JUDGMENT OF
ACQUITTAL DATED 16.02.2010 PASSED BY THE PRESIDING
OFFICER, FAST TRACK COURT, PUTTUR, DAKSHINA
KANNADA DISTRICT IN S.C.NO.23/2009- ACQUITTING THE
RESPONDENTS/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 143, 504, 148, 323, 302, 506
AND 149 READ WITH SECTION 149 OF IPC.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
K.N. KESHAVANARAYANA. J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal filed by the State is directed against the judgment and order dated 16.02.2010 passed by the Presiding Officer, Fast Track Court, Puttur, Dakshina Kannada District, in S.C.No.23/09 acquitting the respondents-accused 1 to 7 of the charges leveled against them for the offences punishable under Sections 143, 504, 4 148, 323, 302 & 506 r/w Section 149 of Indian Penal Code.
2. During the course of this judgment, respondents 1 to 7 herein would be referred to as accused Nos.1 to 7, the rank which they held in the trial Court.
3. Accused Nos. 1 to 7 were charge sheeted for the aforesaid offences alleging that the accused as members of unlawful assembly at about 1.30 p.m. on 12.12.2008 at Vikram Bar in Uppinangady, the common object of which was to commit murder of Purushotham Gowda, in furtherance of the said common object, they physically assaulted Purushotham Gowda with bottles and thereby caused severe injuries, to which he succumbed.
4. The case of the prosecution in brief is as under:
Accused No.1-Vikram Ganesh Bhat is the son of the owner of Vikram Bar situated in Uppinangady. Accused Nos.2 to 7 are the friends of accused No.1. On 12.12.2008 at about 1.00 p.m. the deceased Purushotham Gowda 5 came to Vikram Bar and consumed liquor. However, he was running short of money by about Rs.10/- to pay the bill. In that regard, quarrel ensued between the accused No.1 and deceased inside the bar. At that time, accused Nos. 2 to 7 joining accused No.1, physically assaulted Purushotham Gowda with bottles etc., on the head and other parts of the body and pushed him out of the Bar, as a result, he fell on the road in front of the Bar. While the quarrel was going on at about 1.30 p.m. in front of the cash counter of the Bar, PW1-Umesh Bhandari who was proceeding by walk towards the Jeep stand near old bus stand from the new bus stand side in Uppinangady witnessed the incident of assault on Purushotham Gowda and Purushotham Gowda being pushed out of the Bar and also the assailants trampling Purushotham Gowda by their legs. At that juncture, PW8-N. Giriyappa Gowda, joined PW1 and shifted the injured to Government Hospital at Puttur where he was examined by PW9- Dr.Vijaya Kumar M and as per his advise, the injured was shifted to Wenlock Hospital, Mangalore and from there to 6 Tejaswini Hospital, Mangalore. When the injured was in Wenlock Hospital with history of assault, since it was a medico legal case, the hospital authorities sent intimation to the Uppinangady Police Station. PW12-K.Nagesh, SHO of Uppinangady Police Station who received the intimation from Wenlock Hospital on 13.12.2008, deputed PW10- Panduranga-Head Constable to the hospital with an instruction to record the statement of the injured Purushottam Gowda. However, when PW10 came to the hospital, he noticed that the injured was not in a position to make statement. The Doctor attending the injured also certified that the injured was not in a position to make statement. Therefore, his statement could not be recorded. At about 6.00 p.m. on 13.12.2008, PW1-Umesh Bhandary came to Uppinangady Police station and lodged a written report with regard to the assault on Purushotham Gowda at about 12.12.2008 in Vikram Bar. Based on the written report-Ex.P1, PW11-Sesamma, woman Head Constable, discharging duty as SHO of the police station, registered the case in Crime No.225/2008 7 initially for the offences punishable under Sections 323, 326 r/w Section 34 of Indian Penal Code against accused Nos.1 to 4 and others and dispatched the FIR to the jurisdictional Court.
5. On coming to know of the registration of the case PW12 returned to the police station, took up investigation, proceeded to the scene of occurrence as pointed out by PW1, conducted spot mahazar as per Ex.P2 and seized soda bottles lying near the scene of occurrence marked as M.O.1 and also drew up a spot sketch as per Ex.P11. Thereafter, PW12 apprehended accused Nos.1 to 5, recorded their statement and subjected them to judicial custody. Thereafter, PW12 seized the blood stained clothes of the deceased as per M.Os 2 & 3 produced by his brother, under a mahazar at Ex.P7. The injured Purushotham Gowda in spite of taking treatment breathed his last at about 1.45 p.m. on 17.12.2008 in Tejaswini Hospital, Mangalore. On receipt of the death report of Purushotham Gowda, PW12 submitted a report to the 8 jurisdictional police as per Ex.P12 informing the Court about altering the offences punishable to Sections 143, 147, 148, 506, and 302 r/w Section 149 of Indian Penal Code and also adding the accused Nos.5 to 7 into the case. PW13, B.K.Manjayya, Circle Inspector Puttur Rural, who took up further investigation, held inquest over the dead body subjected the dead body to post mortem examination, recorded the statement of witnesses, collected necessary documents and on completion of investigation, laid the charge sheet for the aforesaid offences against accused Nos.1 to 7.
6. On committal of the case, the accused who were in judicial custody were produced before the learned Sessions Judge and all of them pleaded not guilty for the charges leveled against them and claimed to be tried.
7. The prosecution in order to bring home the guilt of the accused examined PWs 1 to 13, relied on documentary evidence Exs.P1 to P14 and M.Os1 to 3. 9
8. During their examination under Section 313 of Cr.P.C., by the learned Sessions Judge, the accused denied all the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They also filed a written statement. Along with the written statement, they produced three documents, which are shown to have been marked at Exs.D1 to D3. The defence of the accused was one of total denial and that of false implication. It was their further defence that the deceased having consumed liquor heavily appears to have fallen down else where under intoxication and thereby he has sustained injuries and by misusing the said incident, a false case has been foisted against them.
9. After hearing both the sides and on appreciation of oral and documentary evidence, the learned Sessions Judge by the judgment under appeal acquitted all the accused of the charges leveled against them holding that the prosecution has utterly failed to prove the guilt of the accused for the charges leveled against them. Aggrieved 10 by the said judgment of acquittal, the State is in appeal before this Court.
10. Upon service of notice of this appeal, accused Nos. 1 to 7 have entered appearance through their counsel.
11. We have heard the learned State Public Prosecutor - II. Learned counsels appearing for the accused, have remained absent.
12. Learned State Public Prosecutor - II contended that the judgment under appeal is highly perverse and illegal inasmuch as the learned Sessions Judge has on irrelevant grounds rejected the testimony of PWs 1 and 8 and that by reading of the testimony of PWs1 and 8 as a whole and viewed with other circumstances, the learned Sessions Judge ought to have accepted their testimony and on that basis ought to have convicted the accused for the charges leveled against them. He contended that the evidence on record beyond reasonable doubt establishes 11 that the deceased Purushotham Gowda sustained severe injuries at Vikram Bar in Uppinangady at about 1.30 p.m. on 12.12.2008, as a result of the assault on him by the accused and later he succumbed to those injuries on 17.12.2008, as such, the death of the deceased was homicidal. He further contended that the evidence on record beyond reasonable doubt establishes that accused Nos.1 to 7 are responsible for the homicidal death of the deceased and therefore, the judgment of acquittal is liable to be set aside and the accused are liable to be convicted for the offences alleged against them.
13. On the other hand, learned counsel appearing for the accused sought to justify the reasoning adopted by the learned Sessions Judge and contended that the judgment under appeal does not suffer from any perversity or illegality, since, the learned Sessions Judge on proper appreciation of evidence on record has held that the prosecution has utterly failed to prove the complicity of the accused to the crime alleged and since, the finding 12 recorded by the learned Sessions Judge are sound and reasonable having regard to the evidence on record, this Court sitting in appeal against the judgment of acquittal should not interfere with the judgment. He further contended that the learned Sessions Judge has pointed out various circumstances, which clearly indicates that PWs1 and 8 are not eye-witnesses as claimed by them, therefore, the learned Sessions Judge has rightly discarded their testimony. He further contended that there has been unexplained delay in lodging the report about the incident, which has resulted in manipulation; therefore, the whole case of the prosecution is suspicious. They also contended that the learned Sessions Judge has pointed out various circumstances, which indicates the falsity in case of the prosecution and therefore, the judgment under appeal does not warrant interference by this Court. Hence, they sought for dismissal of the case. 13
14. In the facts and circumstances of the case and in the light of the submissions made by both the sides, the point that arises for our consideration is:
(i) Whether the judgment and order of acquittal recorded by the Court below suffers from any perversity or illegality, warranting interference by this Court?
Having heard the learned counsel on both sides and having perused the records as well as the judgment under appeal, our answer to the above point is in negative for the following reasons:
15. Before considering the merits of the case, it is necessary to note the scope of interference by this Court with the judgment of acquittal. The law as to the scope of interference by the High Court sitting in appeal against the judgment of acquittal recorded by the trial court is well-settled.
In Ghurey Lal Vs. State of U.P. [ (2008) 10
SCC 450] though the Apex Court has held
14
that the Appellate Court may review the
evidence in appeal against the acquittal under Section 378 and 386 of Cr.P.C. and its power of reviewing the evidence is wide and it can re- appreciate the entire evidence available on record and also can review the trial court's conclusion with respect to both facts and law, it has been held in the said decision that the accused is presumed innocent until proven guilty and the accused possessed this presumption when he was before the trial court and the trial court's acquittal bolsters the said presumption. It is further held that due or proper weight and consideration must be given to the trial court's decision more especially when a witness's credibility is at issue and it is not enough for the High Court to take a different view of the evidence and there must also be substantial and compelling reasons for holding that the order of trial court was wrong.
After referring to several earlier judgments, the Apex Court has held that the Appellate Courts should follow the well-settled principles crystallized by number of judgments if it is going to over-rule or otherwise disturb 15 the trial court's acquittal and it would do so when it has "very substantial and compelling reasons". The Apex Court has illustrated certain instances which could constitute "very substantial or compelling reasons" as under:-
i) The trial court's conclusion with regard to the facts is palpably wrong;
ii) The trial court's decision was based on an erroneous view of law;
iii) The trial court's judgment is likely to result in "grave miscarriage of justice";
iv) The entire approach of the trial court in
dealing with the evidence was patently
illegal:
v) The trial court's judgment was manifestly
unjust and unreasonable:
vi) The trial court has ignored the evidence or
misread the material evidence or has ignored material documents like dying declaration/report of the ballistic expert, etc. Of course, as observed by the Apex Court, the list is only illustrative and not exhaustive. 16
Again in S. Anil Kumar Vs. State of Karnataka [(2013) 7 SCC 219] it has been held that, only in exceptional cases, where there are compelling circumstances and where the judgment in appeal is found to be perverse, the High Court can interfere with the order of acquittal and that interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. Keeping in mind the aforesaid well-settled principles, we proceed to consider the case on hand.
16. As noticed supra, according to the case of the prosecution, the incident of assault on the deceased occurred at about 1.30 p.m. on 12.12.2008 in Vikram Bar situated in Uppinangady and immediately the injured was shifted to the general hospital at Puttur by PWs1 & 8. It is also the case of the prosecution that in respect of the incident of assault, PW1 launched report as per Ex.P1 at 6.00 p.m. on 13.12.2008. Thus, even from the purported time of the lodging of the report-Ex.P1 as mentioned 17 therein, the report as to the incident came to be lodged nearly about 28 hours after the alleged time of incident.
17. As could be seen from the endorsement made by the jurisdictional Magistrate on the FIR-Ex-P10, the FIR along with Ex.P1 reached him at 1.00 p.m. on 14.12.2008. From the above, it is clear that the FIR reached the jurisdictional Magistrate nearly 48 hours after the alleged time of incident. PW1 in his oral evidence has not come out with any explanation as to why there was delay in lodging the report nor the Investigating Officer has come out with any explanation as to the delay. From the time at which the FIR reached the jurisdictional Magistrate, there is serious doubt as to whether Ex.P1 was lodged at its purported time viz., at 6.00 p.m. on 13.12.2008. There has been delay of nearly 19 hours for the FIR reaching the jurisdictional Magistrate from the purported time of lodging of Ex.P1. The Investigating Officer has not explained as to why nearly 19 hours was taken for the FIR to reach the jurisdictional Magistrate. The police station 18 is at Uppinangady, while the jurisdictional Court is situated in Puttur. From the evidence on record, it is noticed that the distance between Uppinangady and Puttur is hardly about 15 Kms. If Ex.P1 had been lodged at 6.00 p.m. on 13.12.2008 and based on the same, case in Crime No.225/2008 had been registered immediately thereafter, as stated in Ex.P10; it is not forthcoming as to why the FIR could reach the jurisdictional Magistrate only at 1.00 p.m. on 14.12.2008. In this regard, it is necessary to note that PW9-Dr.Vijaya Kumar M, working as Medical Officer in Government Hospital at Puttur though has stated that he examined one Purushotham Gowda brought by his brother Chandrashekhar with a history of assault in Uppinangadi at 1.30 p.m. on 12.12.2008 by unknown people, has not stated as to at what time the injured was brought to the hospital and at what time he examined the injured. According to PW9, on examination, he noticed four injuries and in respect of which he has issued wound certificate-Ex.P8. According to him, after examining the patient, he referred the patient to Wenlock 19 Hospital, Mangalore and provided the government ambulance for the purpose of shifting the patient from the said hospital to Wenlock Hospital at Mangalore. In the cross-examination, he has stated that after registering the case as MLC, he also gave intimation to the police that is Puttur Town Police, but, he has not produced the document regarding intimating the police. He admits that in Ex.P8, some of the columns have been left blank and he had no impediments to fill those columns in Ex.P8. He admitted that in Ex.P8 he has not mentioned the name of the person who brought the injured, but he has mentioned the same in MLC Register. Perusal of Ex.P8, does not indicate as to at what time the injured was brought to the hospital and at what time the injured was examined by PW9. Though in Ex.P8, the history is stated as 'assault at Uppinangady at 1.30 p.m. on 12.12.2008', the name/s of the assailants has not been indicated. However, as noticed supra, PW9 in his oral evidence has stated that the injured was brought to the hospital with the history of alleged assault at Uppinangady at about 20 1.30 p.m. on 12.12.2008 by unknown people. This factor is also evidenced by the MLC Register extract produced by the accused. The accused, as noticed supra, had produced endorsement issued from the General Hospital, Puttur dated 10.12.2009, which they had obtained under RTI Act. According to the same Purushotham Gowda was brought to the said hospital at 5.35 p.m. on 12.12.2008. According to the further case of the prosecution, the injured was shifted to Wenlock hospital from Government Hospital at Puttur and from Wenlock Hospital to Tesjaswini Hospital at Mangalore. Ex.P13 is stated to be the wound certificate issued by Tejaswini Hospital. According to the contents of Ex.P13, the injured Purushotham Gowda was brought to the said hospital at 5.00 p.m. on 13.12.2008 and he was examined by the Doctor in the said hospital at 5.00 p.m. on 13.12.2008. However, according to the documents produced by the accused obtained under RTI Act, the injured Purushotham Gowda was admitted in Wenlock Hospital, Mangalore at 8.10 p.m. on 12.12.2008 and was discharged against 21 medical advice from the said hospital at 3.30 p.m. on 13.12.2008. Even in Ex.P13, the alleged history is mentioned at 1.30 p.m. on 12.12.2008 at Uppinangady by Ramesh Kiplani, Vikram Bhat, Krishna Bhat and Shantaram by soda bottles at Karthik Bar and Restaurant. Of course, it is in evidence on record that Vikram Bar is also called as Karthik Bar. Nevertheless, at the earliest point of time when the injured was taken to hospital at Puttur at 5.30 p.m. on 12.12.2008, the assailants were unknown. If really Purushotham Gowda had sustained grievous injuries at 1.30 p.m. on 12.12.2008, he would have been certainly rushed to the hospital immediately. However, the fact that the injured was shown to have been taken to hospital at Puttur at 5.35 p.m. on 12.12.2008 raises a serious doubt about the alleged incident of assault at 1.30 p.m. on 12.12.2008. Even at 5.00 p.m. on 13.12.2008, the names of four persons had been disclosed as assailants before the Doctors in Tejaswini Hospital. It is pertinent to note that in Ex.P1 there has been over- writing with regard to the 22 name of Vikram son of Ganesh Bhat and Guruprasad Pai, accused Nos.1 and 2. As noticed supra in Ex.P13, the name of Guruprasad Pai is not stated as assailant. Wherever the name of Guruprasad Pai appears in Ex.P1 the said name has been typed after putting whitener on the existing content. This shows that there has been manipulation in mentioning the names of the assailants in Ex.P1. This also raises a doubt about the complicity of the accused and it castes great amount of doubt in the case of the prosecution. Admittedly, the names of accused 5 to 7 have not been mentioned in Ex.P1 nor in Ex.P13. This also indicates that accused 5 to 7 have been subsequently roped in. Ex.P1, in our considered opinion, having regard to the time at which the FIR reached the jurisdictional Magistrate appears to be anti-time, in other words, Ex.P1 has not come into existence at the purported time viz., at 6.00 p.m. on 13.12.2008.
18. The learned Sessions Judge after referring to the evidence of PWs1 and 8 has found that their evidence is 23 not cogent and acceptable and it is highly unsafe to place reliance on their testimony to base conviction. The learned Sessions Judge has extracted several answers elicited in the cross-examination of PWs1 and 8, which according to the learned Sessions Judge makes the testimony of those witnesses highly unreliable and they cannot be considered as eye-witnesses to the incident.
19. As noticed supra, the very occurrence of the incident at about 1.30 p.m. on 12.12.2008 appears to be suspicious, in view of the fact that the injured Purushottam Gowda was shown to have taken to the hospital for the first time at 5.30 p.m. on 12.12.2008. This probablises the defence theory that the deceased must have sustained injury under intoxication, to which he later died. No doubt, the evidence of PWs 12 and 13 does not indicate as to why the statement of the injured Purushotham Gowda was not recorded though he was alive till 17.12.2008. The records indicate that PW10- Panduranga, who was deputed by PW12 to record the 24 statement of injured Purushotham Gowda, went to the hospital and found that the injured was not in a position to make a statement, which was certified by the Doctor and injured continued to remain in unconscious state till his death. Therefore, the statement of the injured could not be recorded. However, on scrutiny of testimony of PWs 1 and 8, we are of the considered opinion that the learned Sessions Judge is justified in holding that they cannot be accepted as eye-witnesses to the incident. Though, according to PWs1 and 8 on seeing the incident of assault they took the injured to the hospital at Puttur, according to the medical evidence, the injured was brought to the hospital by his brother Chandrashekhar and not either by PW1 or PW8. As discussed above, the injured was brought to the Puttur Hospital only at 5.35 p.m. and not at 1.30 p.m. on 12.12.2008. Though according to PWs1 & 8 they witnessed the incident of assault on the deceased, they have not disclosed the said fact to the family members of the deceased immediately. PW1 kept quiet till his lodging of the report as per Ex.P1 25 purported to have been lodged at 6.00 p.m. on 13.12.2008. However, as discussed supra, there is serious doubt about the time, at which Ex.P1 stated to have been lodged. When the injured was taken to the hospital, the assailants were stated to be unknown. Subsequently, the names of accused Nos.1, 3, 4 & 5 were stated as assailants at about 5.00 p.m. on 13.12.2008, when the injured was taken to Tejaswini Hospital, while in Ex.P1 purported to have been lodged at 6.00 p.m. on 13.12.2008, the names of the accused Nos.1 to 4 were mentioned. As already discussed the name of accused No.2 has been added by putting whitener on the existing content in Ex.P1. According to the answers elicited in the cross-examination, PW1 had not seen the actual assault on Purushottam Gowda. According to PW1, he saw deceased Purushottam Gowda for the first time only when he was pushed out of the Bar and as a result, he fell on the road. From this, it is clear that PW1 had not witnessed the actual assault on Purushotham Gowda. Similarly, PW8 also has stated that he had not seen the 26 actual assault on the deceased. If that is so, in our opinion, the learned Sessions Judge is justified in holding that PWs 1 and 8 cannot be accepted as eye-witnesses to the incident.
20. Having regard to the nature of the evidence placed by the prosecution, in our opinion, there is no perversity in the findings recorded by the learned Sessions Judge. The evidence placed by the prosecution does not satisfactorily establish that the deceased Purushotham Gowda sustained injuries, as a result of assault and thereby the prosecution has not satisfactorily established the death of the deceased as homicidal. Even if it is assumed that the death of the deceased was homicidal, the evidence on record does not satisfactorily establish the complicity of any of these accused to the death of the deceased Purushottam Gowda. In our considered opinion, the findings recorded by the learned Sessions Judge are sound and reasonable. Having regard to the evidence placed on record, the judgment under appeal does not 27 suffer from any perversity or illegality warranting interference by this Court. In this view of the matter, we find no merit in this appeal filed by the State. Accordingly, appeal is dismissed.
SD/-
JUDGE SD/-
JUDGE SS*