Karnataka High Court
Subhash S/O Shivmurtheppa Kaknale And ... vs The State Of Karnataka Through Bhalki ... on 25 September, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL APPEAL NO.3514/2013
Between:
1. Subhash S/o Shivmurtheppa Kaknale,
Age 25 years, Occ. Agriculture,
2. Basavaraj S/o Shivmurtheppa Kaknale,
Age 5 years, Occ. Agriculture,
3. Shalivan S/o Shivmurtheppa Kaknale,
Age 45 years, Occ. Agriculture,
4. Shivappa S/o Shamrao,
Age 48 years, Occ. Agriculture,
5. Sidram S/o Shivmurtheppa Kaknale,
Age 38 years, Occ. Agriculture,
6. Sanju @ Sanjukumar
S/o Shivmurtheppa Kaknale,
Age 28 years, Occc. Agriculture,
7. Prashant S/o Shivaraj Kaknale,
Age 23 years, Occ. Agriculture
All are R/o Jaigaon, Tq. Bhalki.
... Appellants
(By Sri Chaitanya Kumar C.M Advocate)
2
And:
The State of Karnataka
Through Bhalki Rural Police Station,
Represented by SPP
High Court of Karnataka
Circuit Bench at Gulbarga.
... Respondent
(By Sri Gururaj Hasilkar, HCGP)
This Criminal Appeal is filed under Section 374(2) of
Crl.P.C praying to set aside the judgment dated 13.12.2012
passed by the learned Presiding Officer, FTC-II, Bidar CAMP at
Bhalki in S.C.No.149/2011 and consequently be pleased to
acquit the appellants for the alleged offence.
This appeal coming on for Dictating Judgment this day,
the Court delivered the following:
JUDGMENT
The above appeal is filed challenging the judgment of conviction dated 13.12.2012 and order on sentence dated 14.12.2012 passed in S.C.No.149/2011 by the Court of the Presiding Officer, Fast Track Court-II, Bidar (hereinafter referred to as the 'Sessions Court').
2. After trial, the Special Court had convicted the appellants for the offences punishable under Sections 143, 147, 148, 341, 323, 504, 324, 326 and 307 3 read with Section 149 of Indian Penal Code (IPC) and sentenced them to undergo simple imprisonment for a period of six months for the offences punishable under Sections 143, 147, 148 and 324 of IPC and for four months for the offence punishable under Section 341 of IPC and three months for the offence punishable under Section 323 of IPC and further sentenced to undergo simple imprisonment for a period of four years with fine of Rs.800/- each for the offence punishable under Sections 326 of IPC with default clause that in default of payment of fine amount shall further undergo simple imprisonment for one month and further sentenced to undergo simple imprisonment for a period of four years with fine of Rs.2,000/- each for the offence punishable under Section 307 of IPC with default clause that in default of payment of fine amount shall undergo simple imprisonment for a period of six months.
4
3. The brief facts of the case are as follows ;- The complainant has lodged a complaint stating that few days before the day of incident the son of the elder brother of the complainant had sent vulgar message to the daughter of the accused No.1 and in this regard there was quarrel taken place between the accused and the brother of the complainant. When this being the fact, on 19.04.2011 at morning 11.00 am when the complainant along with his wife in order to go to Bhalki, had been to the public place namely a Chowdi of Jaigaon Village and thus, getting into the vehicle Tom-Tom bearing Reg.No.KA- 39/3791, at that time all the appellants have formed unlawful assembly by holding knife, club and axe in furtherance of commission of murder of the complainant and came to the tom-tom vehicle and abused the complainant in filthy language and asking that where is the son of the elder brother and accordingly all the appellants have assaulted with axe, knife and club and thus, it alleged the overtact of each of the appellants then 5 the complainant was rescued and in this regard the complaint came to the registered and police have registered the crime in Crime No.50/2011 for the offences punishable under Sections 143, 147, 148, 323, 324, 341, 504, 326, 307 read with Section 149 of IPC as against the appellants and issued first information report.
4. Upon registration of crime, the police have started investigation and the Investigation Officer after collecting all the evidences and after completion of investigation filed charge sheet against the appellants before the committal Court for the offence punishable under Sections 143, 147, 148, 323, 324, 341, 504, 326, 307 read with Section 149 of IPC. The learned Magistrate after receipt of the charge sheet has taken cognizance of the alleged offence under Section 190 of Code of Criminal Procedure (Cr.P.C.) and furnished copies of charge sheet to the appellants as per Section 207 of Cr.P.C and since the offence alleged is exclusively triable by the Sessions 6 Court, therefore, committed the case to the Sessions Court as per Section 209 of Cr.P.C.
5. The Sessions Court after receipt of the committal records had registered the case as Sessions Case No.149/2011 and the Sessions Court had framed the charge against the appellants for the offences punishable under Sections 143, 147, 148, 323, 324, 341, 504, 326, 307 read with Section 149 of IPC. Upon reading over and explained the charge to the appellants, they pleaded not guilty and claims to be tried and accordingly by recording their pleas the Sessions Court has proceeded with trial.
6. In order to prove the guilt against the appellants the prosecution has got examined totally 11 witnesses as PWs.1 to 11 and got marked documents as Exs.P.1 to P.12 and got marked the material objects M.Os.1 to 6.. After completion of the prosecution evidences, the appellants were examined under Section 313 of the Criminal Procedure Code and put to 7 them incriminating circumstances but the appellants have simply denied the prosecution case the appellants have not led any defence evidence and totally denied all the incriminating circumstances and evidence put to them and it is simply denial the prosecution case. Therefore, it is totally denial of prosecution case by the appellants.
7. Based on the evidences adduced by the prosecution the Sessions Court had found the appellants as guilty of the offence punishable under Sections 143, 147, 148, 341, 323, 504, 324, 326 and 307 read with Section 149 of Indian Penal Code. Therefore, accordingly convicted the appellants for the above offences as stated above and accordingly awarded sentence against the appellants as stated above.
8. Being aggrieved by the said judgment of conviction and order on sentence, the appellants have preferred the present appeal inter alia raising various grounds in the memorandum of appeal and also the 8 learned counsel for the appellants vehemently argued that all the witnesses are relative witnesses and they are not believable but without appreciating the evidence on record properly the Sessions court has convicted the appellants. Further submitted that in the present case the doctor is not examined to prove the injuries sustained by the complainant and just a production of wound certificate is not sufficient to prove the injuries might have been sustained by the complainant. Further argued that when all the alleged eyewitnesses are proved to be relative of the complainant and their evidences are to be carefully considered and with utmost cautions because there is chances of false implication of the appellants. In this regard the learned counsel for the appellants relied on the judgment of the Co-ordinate Bench of this court in the case of State of Karnataka v. D.Narayanagowda (Crl.A.No.701/1998 - 24.07.2002).
9. Further submitted that the weapons stated to have been used by the appellants were sent to Forensic 9 Science Laboratory, after 35 days from the date of incident. Therefore, there was much manipulation is caused in fixing the weapons just for the purpose of the case, this creates the doubt in the prosecution case. Further submitted that when the complainant (PW.1) had stated that the appellants have torn shirt and assaulted him then he has sustained bleeding injuries and his shirt, banian, underwear and pyjama were blood stained but the Investigating Officer has not collected those articles and are also not produced before the Sessions Court and therefore this is the fatal to the prosecution case.
10. Further submitted that when it is the case of the prosecution that complainant (PW.1) has sustained grievous injuries due to the assault stated to have been made by the appellants then the prosecution ought to have produced the hospital records showing that he has undergone treatment in the hospital and also when it is the case of the prosecution that the complainant (PW.1) had admitted to the Government Hospital, Bidar and then 10 to Osmaniya Hospital, Hyderabad but the prosecution has not produced hospital records from both the hospitals. Therefore, submitted that the prosecution case is that the sustaining of injuries and admitting into the hospital are false one.
11. Further when the PW.2 had stated that she has also sustained certain injuries at hands of the appellants but the prosecution has not produced any wound certificate or medical records to show that PW.2 had also sustained injuries at the hands of the appellants. Therefore, submitted that the entire prosecution case is cooked up story and all these witnesses PWs.1, 2, 3, 4 and 9 are the relative of each other. Therefore, all have stated in stereo typed evidence but do not inspire confidence of the court. Therefore, submitted that the prosecution has not proved the guilt against the appellants beyond all reasonable doubt.
11
12. Further submitted that when the incident was taken place at the day broad light at morning 11.00 am and that too in public place which is Chowdi of Jaigaon village (place of public gathering in the village) which is the near the bustand of but none of the independent witnesses were examined by the Investigating Officer and has only recorded the statement of the relatives of the complainant (PW.1) and filed charge sheet. Therefore, for want of independent witnesses when the alleged incident was taken place in a public place that too at morning 11.00 am, then prosecution case is proved to be false one. Therefore, submitted that the entire prosecution case is cooked-up one and hence the appeal is liable to be allowed and requested to set free the appellants from the charges levelled against them.
13. On the other hand the learned High Court Government Pleader submitted that there are eyewitnesses to the alleged incident, who are PWs.1, 2, 3, 4, 8 and 9 and all the evidences corroborate with the 12 evidence of complainant (PW.1) that PW.1 has sustained injuries due to assault made by the appellants. Further submitted that there are no contradictions and omissions are revealed in the evidences and the evidence of eyewitnesses inspires confidence of the court. Therefore, prays to dismiss the appeal as being found devoid of merits.
14. Further submitted that when the prosecution is able to prove the guilt of the appellants by the eyewitnesses then non-examination of the Doctor and non-production of the hospital records which are not having much significance when the prosecution is able to prove the guilt of the appellants by the eyewitnesses, therefore prays to dismiss the appeal.
15. Before making analysis of the evidences on record, it is appropriate to have a cursory look on the role of each of the witnesses as placed by the prosecution before the Sessions Court :-
13
PW.1 is the injured and lodged complaint; PW.2 is the wife of PW.1 and eyewitness to the incident who had also sustained injuries; PW.3 is the panch witness for seizure of club; PW.4 is the panch witness of seizure of MOs.1 and 2; PWs.5 an 6 are the eyewitnesses; PW.7 is the spot panch witness; PWs.8 and 9 are the eyewitnesses; PW.10 is the Constable and PW.11 is the PSI who had conducted investigation and filed charge sheet.
16. In the present case the genesis of the crime is that the son of the elder brother of the complainant had sent vulgar messages to the daughter of appellant No.1 and in this regard, there was quarrel occurred between the complainant and the appellants. When this being the genesis of the crime a case is registered but the prosecution has not produced any records to show that between sending the vulgar messages to the daughter of PW.1 by the son of the elder brother of the complainant and in this regard no records are produced to prove the 14 motive on the part of the appellants that for what reason the appellants have committed the alleged offence.
17. PW.1 is the complainant simply had stated in this regard that there was quarrel taken place because of a case is registered and it is borne out on the complaint itself but no such records for proving the motive is produced by the prosecution before Sessions court. It is alleged that the appellants themselves have formed an unlawful assembly and assaulted the complainant (PW.1) by saying that where is the son of elder brother of the complainant and all the eyewitnesses in the present case are the relative of PW.1.
18. The PW.1 has stated in his evidence that when he and PW.2 (wife) in order to go to Bhalki wherein they have come into Chowdi of Jaigaon Village of Bhalki Taluk and at that moment, all the appellants have come there by themselves forming unlawful assembly by holding axe, club and knife and assaulted them. The same version of 15 evidence is stated by PW.2, who is the wife of PW.2 and other eyewitnesses PWs.2, 5, 6, 8, and 9. All these eyewitnesses have stated that the appellants themselves have formed into an unlawful assembly and assaulted the PW.1 and then the PW.1 had sustained injuries. At this juncture, the submissions made by the learned counsel is to be appreciated that these eyewitnesses PWs.5, 6, 8 and 9 are the relatives of PW.1. PW.2 is the wife of PW.1, PW.5 is the aunt of PW.1, PW.6 is the husband of PW.5 and PW.1's real brother and PW.8 is stated to be an auto driver and PW.9 is the close relative of PW.1. Upon considering the cross-examination of these witnesses they have admitted that they are relative of PW.1. Therefore upon considering the evidences stated by these witnesses in examination-in-chief, they have stated in a stereo typed version and in the course of cross-examination they have admitted that these witnesses are near relative of PW.1. Therefore, when this being the fact, the evidence of these witnesses are to be considered with utmost cautious and 16 carefully. Where the witnesses are relatives of the injured their evidences are to be considered with the utmost cautious and carefully and meticulous scrutiny of the evidence is necessary and In this regard, I place reliance on the judgment of Hon'ble Apex Court in the case of of State of Himachal Pradesh vs. Rajkumar [(2018) 2 Supreme Court Cases 69], wherein it is observed as under:
"16. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to be truthful in the given circumstances of the case. Once that impression is formed, it is necessary for the court to scrutinize the evidence more particularly keeping in view the drawbacks and infirmities pointed out in the evidence and evaluate them to find out whether it is against the general tenor of the prosecution case."
19. I place reliance on the another judgment of Hon'ble Apex Court in the case of Gurdev Singh vs. State of Punjab [AIR 1992 SC 1924]; Kathi Odhabhai Bhimabhai and others vs. State of Gujarat [AIR 1993 SC 1193].
17
20. Therefore, when the evidence of above said witnesses are considered with utmost care and cautious in the course of cross-examination of these witnesses have admitted that they are relative of PW.1. No doubt, it is not the rule that the evidence of relative witnesses cannot be believed but appreciation of evidence requires more caution and carefulness as in the present case the Investigating officer had not examined any of the independent witnesses and also the prosecution has not examined any of the witnesses sated to have been witnessed the incident. When it is the case of the prosecution that on 19.04.2011 at morning 11.00 am in the public place which is stated to be Chowdi of Jaigaon Village and usually the public in that place are gathered and under these circumstances, in that place if the incident of assaulting by making use of axe, club and knife are used and PW.1 had sustained bleeding injures then many people very well could have gathered but the Investigating Officer had not at all recorded the statement 18 of the other independent witnesses. The PW.11 is the Investigating Officer in his evidence he has stated that he has recorded the statement of relatives of PW.1 only therefore it is proved that the prosecution do not have any independent witnesses other than the only the relative of PW.1. Therefore, in this regard when the evidence of PW.1 as well as the alleged eyewitnesses are to be considered with reference to the other evidence the prosecution has not examined the Doctor to prove that PW.1 had sustained injuries. Mere production of wound certificate as per Ex.P.9 is not sufficient to prove that the PW.1 had sustained injuries. For the best reasons known to the prosecution, the prosecution has not examined the Doctor therefore mere production of wound certificate is not sufficient to prove that the PW.1 had sustained injuries.
21. Furthermore, when it is the evidence of PW.1 that he had sustained injuries and his shirt, banian, underwear and pyjama have been blood stained but the PW.11 Investigating Officer had not collected the blood 19 stained shirt and banian and not produced before the court. Therefore, this creates doubt in the mind of the court about the veracity of the prosecution case.
22. Furthermore, when it is the evidence of PW.1 and also as the prosecution case that PW.1 had sustained grievous injuries on the head and except production of wound certificate, the prosecution has not produced any hospital records either from the Government Hospital, Bidar or from the Osmaniya Hospital, Hyderabad. When it is the case of the prosecution after the alleged incident the PW.1 had been admitted to Government Hospital, Bidar and then Osmaniya Hospital, Hyderabad then the Investigating Officer could have collected the medical records for proving that PW.1 had sustained grievous injuries and was admitted into the hospital and has taken treatment but in this regard the prosecution during the course of trial has not produced any hospital records which creates doubt in the evidence of PW.1 and other witnesses.
20
23. Furthermore, the PW.2 has also stated that she sustained injuries from the appellants but the prosecution has not produced any medical certificate to show that the PW.2 had also sustained injuries. Therefore this also creates doubt regarding genesis of the crime itself as stated by the prosecution.
24. Furthermore, the weapons stated to have been used which are knife, axe, and club were sent for FSL for scientific examination after 35 days from the date of incident. The alleged incident was taken place on 19.04.2011 and on the very same day as per the evidence of Investigating Officer (PW.11) the materials objects MOs.1 to 3 which are axe, knife and stick were recovered from the place on 19.04.2011 itself but the same were sent to FSL on 25.05.2011 i.e., after lapse of 35 days from the recovery of the said articles. Therefore this creates doubt in the mind of the court that why there should not be manipulation in planting these material objects in the case so as to suit the prosecution case. In this regard the 21 learned counsel for the appellants relied on the judgment of Division Bench of this Court in Crl.A.No.701/1998 dated 24.07.2002, wherein it is held that the delay in sending the incriminating material objects to the FSL causes doubt on bonafidness and fairness of the investigation. Therefore, in this regard the investigation is found to be not fair one. Therefore, as observed above the evidence of these witnesses PWs.1, 2, 3, 4 and 9 are found to be relatives to each other and when their evidences are considered carefully and cautiously but their evidence do not inspire confidence of the court that they are telling true versions, also the Investigating Officer had not made any attempt to record the statement of independent witnesses even though as per the prosecution case when the incident was occurred morning at 11.00 am many people are very much available but the Investigating Officer did not enquire any other independent witnesses therefore this shows a doubt in the mind of the court 22 regarding real genesis of the crime and occurrence of crime as stated in the complaint.
25. Therefore, upon considering all these evidences as discussed above, just because the prosecution witnesses have supported the case as per their statement given before the Investigating Officer but as discussed above the Investigation conducted by PW.11 itself is found to be not fair investigation and further for the reason that all the witnesses are relative to each other and are having no corroboration from any other independent witnesses and also in absence of medical evidence of non examining the Doctor to prove the injuries sustained by PW.1 and also there are no hospital records produced by the prosecution, even though as per the prosecution the PW.1 was admitted into two hospitals and had taken treatment before Government Hospital, Bidar and then Osmaniya Hospital, Hyderabad. Hence, there is no corroboration found from other independent witnesses and the other material evidences as discussed above. Therefore, in this 23 regard the Sessions Court has not appreciated the evidence on record correctly and only swayed away what is stated in examination-in-chief and came to wrong conclusion that the prosecution is able to prove the guilt of the appellants. The appreciation of evidence can be done not only what is stated in the examination-in-chef but to appreciate the evidence by taking the evidences in its entirety and to find-out by taking all the evidences cumulatively whether the prosecution is able to prove the guilt or not. Therefore, when where it is not found application of mind to this principles in the present case but only relying on the evidences of so called eyewitnesses above discussed cannot be said that the prosecution is able to prove the guilt of the appellants. Therefore, in this regard for the reasons above discussed and the observations made above, the Sessions Court finding is not correct as being swayed away by the evidence of the prosecution as above discussed finding the guilt against the appellants. Therefore, it is completely perverse 24 approach on the part of the Sessions Court as the prosecution has failed to prove the guilt of the appellants beyond all reasonable doubt when the case is considered in its entirety then certainly the benefit of doubt must be extended in favour of the appellants. Accordingly, the judgment of conviction and order on sentence recorded by the Sessions Court is liable to be reversed. Accordingly, the appeal succeeds. Hence, I proceed to pass the following :-
ORDER The appeal is hereby allowed.
The judgment of conviction dated 13.12.2012 and order on sentence dated 24.12.2012 passed by the Fast Track Court-II, Bidar, Camp Bhalki in S.C.No.149/2011 is hereby set aside.
Consequently, the appellants are hereby acquitted from the charges levelled against them for the offences punishable under Sections 143, 147, 148, 341, 323, 504, 25 324, 326 and 307 read with Section 149 of Indian Penal Code.
The bail bonds and surety bonds of the appellants shall stand cancelled.
The Sessions Court is hereby directed to refund the fine amount, if deposited by the appellants on their proper identification and acknowledgement.
The Registry is directed to send back the trial court records.
Sd/-
JUDGE sn