Karnataka High Court
Dayanand S/O Makkanna Patil vs The State Of Karnataka on 11 March, 2022
Author: K. Somashekar
Bench: K. Somashekar
1
R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF MARCH 2022
BEFORE
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRIMINAL APPEAL No.200120/2016
Between:
Dayanand S/o Makkanna Patil
Age: 25 years, Occ: Driver
R/o: Kalakhora Village
Tq: Basavakalyan, Dist: Bidar
... Appellant
(By Sri Shivanand V. Pattanashetti, Advocate)
And:
The State of Karnataka
R/by Addl. SPP High Court of
Karnataka, Kalaburagi Bench
(Through Mudabi P.S. Dist:Bidar)
... Respondent
(By Sri Gururaj V. Hasilkar, HCGP)
This Criminal Appeal is filed under Section 374 (2) of
Cr.P.C., praying to set aside the judgment of conviction
and order of sentence dated:22.08.2016 and 25.08.2016
respectively, passed by the II Addl. District & Sessions
2
Court, Bidar sitting at Basavakalyan in S.C.No.189/2014
and acquit the appellant/accused no.1.
This appeal coming on for dictating judgment this
day, the Court delivered the following:
JUDGMENT
This appeal is directed against the judgment of conviction rendered by the II-Additional District and Sessions Judge, Bidar, sitting at Basavakalyan in S.C.No.189/2014 dated 22.08.2016, whereby rendering conviction against accused No.1 - Dayanand who is appellant before this Court. This accused was convicted by the trial Court for the offences punishable under Sections 504 and 333 of Indian Penal Code, 1860 (hereinafter referred to as the 'IPC') for short) and sentenced him to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.1,000/- with default clause for the offence punishable under Section 504 of IPC and to undergo imprisonment for a period of 5 years and to pay a fine 3 of Rs.25,000/- with default clause for the offence punishable under Section 333 of IPC. This appeal is filed seeking to consider the grounds as urged and to set aside the conviction held against the appellant/accused No.1 and to acquit him of the offences punishable under Sections 504 and 333 of IPC.
2. Heard the learned counsel Sri Shivanand V. Pattanshetti for the appellant/accused No.1 and the learned High Court Government Pleader for the respondent/State. Perused the judgment of conviction in S.C.No.189/2014 dated 22.08.2016 in respect of the accused-Dayanand. The aforesaid judgment consisting the evidence of PWs-1 to 13 and documents at Exs.P1 to P-19 inclusive of M.Os.1 to 5. 4
3. Factual matrix of the appeal are as under:
It transpires in the case of the prosecution that in pursuance of the order/direction issued by the superior officer that the accused persons are selling illegal arrack in the hotel of accused No.2 during Devi Tanda fair, on 16.01.2014 at 11.00, the complainant and CW-6 had been to collect some sort of information against the persons being arraigned as accused, in the limits of Kalkhora village and they reached to that place. The complainant and CW-6 were sitting in the hotel of accused No.2. At that time, accused No.3 identified that they are police and therefore along with other accused started abusing them in filthy language saying that since one hour they are sitting in this hotel causing inconvenience to sell arrack. As such, the accused have picked up quarrel with the complainant and CW-6. When they went out of the hotel, accused No.1 namely Dayanand assaulted CW-6 with means of 5 stick on his left parietal region as a result of that he sustained some bleeding injuries. In the course of that incident, accused No.5 namely Srinath also assaulted with means of a stick on the left parietal region of CW-6 and as a result of that he sustained bleeding injuries. The complainant who came forward to veil the incident, was assaulted by accused Nos.2, 3, 4 and 6 with means of their hands and legs and caused injuries. By this act, the accused have caused obstacle to discharge their duty being a Government servant. In pursuance of the act of the accused, on the filing of a complaint by the complainant, criminal law was set into motion by recording FIR as per Ex.P11 for the offences punishable under Sections 143, 147, 148, 353, 332, 333, 504 read with Section 149 of IPC. PW-10 being an Investigating Officer in part who received the complaint at Ex.P-11 filed by Jagadevappa being a police constable and based upon 6 his complaint criminal law was set into motion by recording a FIR as per Ex.P-11.
4. Subsequent to recording the FIR, the case was taken up for further investigation by PW-13 who conducted the investigation and laid the charge sheet against the accused persons. During investigation, the Investigating Officer conducted spot panchanama as per Ex.P-3 and also recorded the statement of witnesses and so also secured the wound certificate at Ex.P-9 and also opinion report as per Ex.P-10 and also conducted seizure panchanama as per Ex.P-12 inclusive of issue of sketch map as per Ex.P-13 and laid the charge sheet against the accused before the committal Court.
5. Subsequent to laying the charge sheet by the Investigating Officer whereby the committal Magistrate had passed the committal order as under 7
Section 209 of Cr.P.C. by following the requisite provision of 207 of Cr.P.C. and the case has been committed to the Court of the Sessions for trial. Subsequent to committing the case to the Court of Sessions and whereby heard on charge by the learned Public Prosecutor for the State and the defence counsel for the accused and framed the charges against the accused. The accused did not plead guilty but claimed to be tried. Accordingly, plea of the accused have been recorded separately.
6. Subsequently, the prosecution let in evidence by subjecting to examination of PWs-1 to 13 and so also got marked several documents at Exs.P1 to P19 and marked of M.Os.1 to 5. Subsequent to the closure of the evidence on the part of the prosecution, the accused were subjected to examination as contemplated under Section 313 of Cr.P.C. for incriminating evidence appeared against the accused, 8 whereby the accused declined the truth of the evidence of the prosecution adduced so far.
7. Subsequent to recording the incriminating statement, accused were called upon to adduce any defence evidence as contemplated under Section 233 of Cr.P.C. But the accused did not come forward to adduce any defence evidence as contemplated under Section 233 of Cr.P.C.
8. Subsequent to closure of the entire case of the prosecution, the trial Court heard the arguments advanced by the learned Public Prosecutor and so also counter arguments advanced by the defence counsel for the accused. On close scrutiny of the evidence of PW-1 Jagadevappa being a Police Constable who filed a complaint as per Ex.P-1 and so also the evidence of PW-2 and PW-3 being the panch witnesses in respect of Ex.P-3 and the spot panchanama, so also the 9 evidence of PW-8 Shankumkha who is a Police Constable by avocation and also being the injured, inclusive of their evidence on close scrutiny of the evidence of PW-9 Dr. Sharnagouda and PW-10 Investigating Officer in part, recording FIR as per Ex.P-11 and so also the evidence of PW-12 Head Constable who received the MLC intimation relating to the injured and so also the evidence of PW-13 being the Investigating Officer who laid the charge sheet against the accused persons and on close scrutiny of the documents which were got marked on the part of the prosecution, the trial Court has come to the conclusion that the prosecution miserably failed to prove the guilt of accused Nos.2 to 6 and ended in acquittal of the offences punishable under Sections 143, 147, 148, 353, 332, 333, 504 read with Section 149 of IPC but held conviction against the appellant/accused No.1 for the offences punishable 10 under Section 504 and 333 of IPC, which is incorporated in the operative portion of the order. It is this judgment which is challenged under this appeal by accused No.1 urging various grounds.
9. It is the contention of the learned counsel for the appellant/accused No.1 by referring the evidence of PW-1 who is a complainant as per Ex.P-11 and so also in respect of PW-8 that they are Police Constables and they were discharging their official duty according to their contention. But the prosecution, with a malafide intention, given up the evidence of CW-17 who has been cited as a witness who led his evidence as part of the prosecution even though CW-17 being a material witness. Therefore, the prosecution has failed to prove the guilt of the accused relating to the material ingredients of Section 333 of IPC whereas the trial Court did not give more credentiality to the evidence of other witnesses but 11 only considered the evidence of PWs-1 and 8 who are the Police Constables and also official witnesses. Strangely, the trial Court rendered an acquittal judgment of accused Nos.2 to 6 but convicted the appellant/accused No.1. The role of each one of the accused is required to be appreciated by the trial Court in a proper perspective. On this count alone, the impugned judgment of conviction held against appellant/accused No.1 for the offences punishable under Sections 504 and 333 of IPC requires to be intervened.
10. The second limb of argument of the learned counsel for the appellant/accused No.1 is that the prosecution ought to have produced the X-ray report to prove the grievous injuries, if sustained or inflicted to the injured person. But in the instant case the prosecution has failed to produce the X-ray report relating to the injured PW-8, being the police 12 constable. Non-production of X-ray report of the injured creates doubt in the prosecution case. The same has not been appreciated by the trial Court in a proper perspective. It is further contended that looking to the further statements of the complainant who is examined as PW-1 that complainant came to know the name of the appellant and other accused after filing the complaint dated 17.01.2014. But looking to the complaint averments complainant specifically mentioned the name of appellant and other accused which clearly goes to show that the complainant with malafide intention colluding with the police personnel who were accused in P.C.No.20/2012 filed by the appellant and just to take revenge against the appellant the instant case has been filed. This fact has not been properly appreciated by the trial Court. Therefore, in this appeal it requires to be intervened, if not intervened by re-appreciation of the evidence, 13 certainly the accused would be the sufferer and also there shall be some substantial miscarriage of justice.
11. Lastly the counsel submitted that the conviction judgment rendered by the trial Court is liable to be set aside because the trial Court has given more credentiality to the evidence of PWs.1, 8, 10, 12 and 13 and they are the interested witnesses and so also official witnesses but their evidence are required to be appreciated in a proper perspective and there is required to be evaluated keeping in view the role of each one of the accused and so also the credibility of the evidence of PWs-1 and 8 who are the official witnesses. But the trial Court failed to appreciate the evidence in a proper perspective even though the evidence facilitated by the prosecution are found to be inconsistent and also lot of improvements have been found in the evidence of the prosecution witnesses. Therefore, in this appeal it requires re-appreciation of 14 the evidence as the trial Court misdirected and misinterpreted the evidence. On all these grounds, the learned counsel for the appellant seeks for intervention with the judgment of conviction rendered against the appellant/accused No.1 by the trial Court. On all these premises seeking for allowing the appeal and consequently setting aside the judgment of conviction rendered against the appellant/accused No.1 in S.C.No.189/2014 dated 22.08.2016 whereby held conviction for the offences punishable under Sections 504 and 333 of IPC.
12. Learned High Court Government Pleader for State taken me through the evidence of PW-1 Jagadevappa who is a police constable and has filed a complaint as per Ex.P-1 and based upon his complaint PW-10 recorded an FIR as per Ex.P-11 whereby PW-1 Jagadevappa and PW-8 Shanmukha as per the instructions issued by his superior, went for securing 15 some information about the person being an accused and accordingly went to the hotel of accused No.2 Jyoti on 16.01.2014 whereby in the limit of Kalkhora village there will be a fair of local tanda as they had the information that in that hotel arrack is being sold illegally. PW-1 who is the complainant and PW-8 who is the injured were sitting in that hotel of accused No.2. At that time, accused No.3 identified that they are police and therefore along with other accused started abusing them in filthy language saying that since one hour they are sitting in this hotel causing inconvenience to sell arrack. As such, the accused have picked up quarrel with the complainant and CW-
6. When they went out of the hotel, accused No.1 namely Dayanand assaulted CW-6 with means of stick on his left parietal region as a result of that he sustained some bleeding injuries. In the course of that incident, accused No.5 namely Srinath also 16 assaulted with means of a stick on the left parietal region of CW-6 and as a result of that he sustained bleeding injuries. The complainant who came forward to veil the incident, was assaulted by accused Nos.2, 3, 4 and 6 with means of their hands and legs and caused injuries. By this act, the accused have caused obstacle to discharge their duty being a Government servant. In pursuance of the act of the accused, on the filing of a complaint by the complainant, criminal law was set into motion by recording FIR as per Ex.P11 for the offences punishable under Sections 143, 147, 148, 353, 332, 333, 504 read with Section 149 of IPC. These are all the evidence facilitated by the prosecution by subjecting to examination of PW-1 Jagadevappa, who is a police constable by avocation and also who is an author of the complaint at Ex.P-1 and his evidence is corroborated with the evidence of PW-8 Shanmukha by avocation is a police constable 17 and also he is an injured and whereby sustained with injuries as indicated at Ex.P-9 and also in his report in terms of a letter at Ex.P-10 and so also the OPD Form issued by Kalaburagi District Hospital at Ex.P-18 and chemical analysis report as per Ex.P-19 and so also the spot mahazar Ex.P-3 and inclusive of cloth seizure mahazar as per Ex.P-12. All these evidences have been facilitated by the prosecution whereby the trial Court rightly came to the conclusion that accused No.1 Dayanad assaulted PW-8 Shanmukha with means of club/stick as a result of that he sustained injuries as disclosed at Ex.P-9 wound certificate issued by PW-9 doctor who provided treatment to him.
13. It is the contention of learned counsel for the appellant/accused No.1 that PW-3 who is a panch witness of Ex.P-3 in respect of spot panchanama being conducted by Investigating Officer in his presence and 18 also in the presence of PW-2 did not support the case of the prosecution in respect of the fulcrum of the spot mahazar to even PW-4 - Manikappa, PW-5 Bheemsha, PW-6 Sharnappa, PW-7 Pandurang and PW-11 Mahesh. They have been subjected to examination on the part of the prosecution and they did not support the case of the prosecution. Merely because they did not support the case of the prosecution even though they are the independent witnesses but the evidence of PW-1 Jagadevappa in respect of Ex.P-1 complaint so also the evidence of PW-8 Shanmukha who is an injured while they were proceeding on their duty being Government servant and the accused persons coming in the way by causing some obstacle to discharge their duty, the same has been seen in the evidence of PW-1 and PW-8 and their evidence is corroborated with the evidence of PWs.10, 12, 13. PW-13 being the Investigating Officer who laid the charge sheet 19 against the accused and further supported their evidence that the evidence of PW-9 being a doctor who issued the injury certificate Ex.P-9. These are all the evidence that has been let in by the prosecution. Merely because the aforesaid witness PWs.4, 5, 6, 8 have not been withstood with their statement, the evidence of PW-1 and so also the evidence of PW-8 Shanmukh cannot be brushed aside and they are the Police Constable and while they were proceeding to their duty being a Government servant these accused as well as other accused caused some obstacle to discharge their duty. The same has been seen in the evidence of PWs-1 and 8 whereby they were present in the hotel of accused No.2 as they had information that in the hotel of accused No.2 arrack was being sold illegally. These are all the evidence facilitated by the prosecution. Therefore, the trial Court has rightly appreciated the evidence and rendered a judgment of 20 conviction against accused No.1 and also sentenced accused No.1/appelant in the instant case in S.C.No.189/2014 for the offences punishable under Sections 504 and 333 of IPC. Therefore, this appeal deserves to be dismissed being devoid of merits and whereby the trail Court has rightly appreciated the evidence and arrived at a proper conclusion and the prosecution has proved the guilt against this appellant/accused No.1 beyond all reasonable doubt.
14. It is in this context of the contention made by the learned counsel for the appellant/accused- Dayanand and so also the counter argument advanced by the learned High Court Government Pleader for the respondent/State and based upon the evidence of P.W.1 who is the complainant in respect of the complaint at Ex.P.1 and so also the evidence of P.W.8 who is the injured and both P.Ws.1 and 8 by avocation as Police Constables and they have been discharging 21 their duties on 16.01.2014 at around 6.30 p.m. But, on the aforesaid date at around 11 hours, there was some local fair in the Kalkhora village of Devi Thanda and whereby accused No.2 in her hotel alleged to have been engaged in selling the arrack and therefore P.Ws.1 and 8 were deputed and they have collected the information about the activities of selling of arrack in their hotel. Therefore, P.Ws.1 and 8 had been to the hotel of accused No.2 and whereby they sat hours together in the hotel. Therefore, accused No.3, who identified them as police constables when they were in the hotel, but remaining accused have unlawfully assembled and abused them in filthy language saying that they sat in the hotel hours together by causing convenience to their business of sale of arrack. When the accused persons alleged abusing P.Ws.1 and 8 and thereafter they have come out from the hotel and in the meanwhile, accused No.1 who is an appellant 22 herein alleged to assaulted with means of stick by chosing the left partial region and that P.W.8 alleged to have been sustained some bleeding injuries, in the meanwhile remaining accused No.5 who alleged to have assaulted on the temporal region of P.W.8 and as a result of that he sustained bleeding injuries. When the complainant come forward to telling the incident and also rescuing P.W.8 from the clutches of the accused person and in the meanwhile, remaining accused Nos.2 to 4 and 6 were also alleged to have assaulted with means of hand and given a blow over his persons. In pursuance of the act of the accused, criminal law was set into motion by registering the crime against the accused for the offences punishable under Sections 143, 147, 148, 353, 332, 333, 504 r/w Section 149 of IPC.
15. C.W.17 who is cited as an witness in the charge-sheet laid by P.W.13 and who is a superior 23 officer of P.W.1 and P.W.8 and they have been deputed for discharging their official duties to ascertain or to collect the information regarding business of illicit liquor and also to watch over the aforesaid business of illicit liquor activities as there was a fair at Kalkora, but after receipt of a credible information regarding selling of illicit liquor i.e., arrack in the hotel of accused No.2 and according to the credible information and so also the deputation made by C.W.17 being the superior officer and that P.Ws.1 and 8 went to the hotel of accused No.2 in a civil dress and they have placed an order of brining tea and water bottle, at that time accused No.3 refused to supply tea and also the water bottle and that even though they have been placed order, but the accused Nos.2, 3 and 4 have been suspected their activities and identified they are as police constables and abused them in a filthy language saying as they were 24 coming in the way of selling of arrack in the hotel of accused No.2, when there was such kind of incident alleged to have been taken in the hotel of accused No.2 by abusing in a filthy language towards the police personnel and P.Ws1. and 8, who have come out from the hotel and thereby all the accused persons formed into an unlawful assembly and at that time accused No.1 alleged to have assaulted with means of a stick upon the left side partial region of P.W.8 and so also alleged to have assaulted by accused No.5 with means of another stick which was lying on the ground on the left side temporal region of P.W.8. As a result of that, P.W.8 sustained injuries, in the meanwhile, P.W.1 who is the complainant by avocation as police constable and he intervened to pacify the incident taken place between P.W.8 who is also one of the police constable and he was also deputed subordinate staffs for securing the 25 information about some sort of a business activities was taken inside the hotel of accused No.2, at that time accused Nos.2, 3, 4 and 6 alleged to have been assaulted with means of their hands and given a kick over the stomach part of P.W.8 and also caused some injuries over his person.
16. This allegation made against the accused persons by filing a complaint as per Ex.P.1 and based upon complaint, criminal law was set into motion by recording the FIR as per Ex.P.11, but entire case was revolving around the evidence of P.W.1 and P.W.8 and so also the injury sustained over a person of P.W.8 indicates at Ex.P.9 of the wound certificate issued by P.W.9 being a doctor who is subjected to provide a treatment to him.
17. Whereas, the trial Court rendered an acquittal judgment in respect of co-accused Nos.2 to 6 26 even though alleged to have been participated with the accused No.1 who is arrayed as an appellant before this Court. But the role of each one of the accused in respect of the offences has been lugged against them. But, M.Os.1 and 2 clubs two in numbers and M.Os.3 and 4 being packet containing mud which were collected from the scene of crime and M.O.5 is cloth and all these material objects have been seized by investigating officer P.W.13 who investigated the case and laid the charge sheet against the accused persons.
18. In pursuance of the complaint filed by P.W.1, criminal law was set into motion by recording FIR as under Section 154 of Cr.P.C., but subsequent recording an FIR, the investigation officer has taken up the case for investigation and laid the charge sheet against the accused. But there was delay in filing of a complaint in narrating the incident. It was alleged to 27 be taken place at the scene of crime. Even there was a delay in lodging FIR, it is not fatal to the case of the prosecution but it should explain the delay by giving acceptable reasons, even the fact that the report was lodged belatedly, it is relevant factor to which the trial Court must take notice and take into consideration for arrival of a conclusion of the incident narrated in the complaint and so also substances made in the FIR said to have been recorded by the police having jurisdiction.
19. The FIR is the primary object to set the law into motion. When the criminal law was set into motion, then the investigation officer who has taken up the case for investigation by following the provisions of Section 173(2) of Cr.P.C. Even FIR itself is not a proof of the case initiated against the accused. Even though it is the case of evidence but it could be used for corroborating the case of the prosecution. It 28 is the domain vested with the investigating agency that keeping in view Section 154 of Cr.P.C. relating to the nature of the offences register the crime and also proceeding with the case for investigation. But in the instant case, P.W.1 who is the police constable and P.W.8 who is also a police constable and also an injured, but the delay in filing the complaint relating to the incident it was occurred at the scene of crime i.e., hotel belongs to accused No.2. Strangely, in the instant case, the trial Court rendered the acquittal judgment in respect of the remaining accused Nos.2 to 6, but the conviction held against the appellant who is arrayed as accused No.1 by the trial Court is under clouds of doubts.
20. To attract section 504 of Indian Penal Code, 1860, the prosecution must satisfy the intentional insult with intent to prove breach of the 29 peace. To attract this offence, the important ingredients to be proved, they are;
a) intentional insult;
b) Insult must be such as to give some provocation to the person insulted; and
c) The accused must intent or know that such provocation would cause another to break the public peace or to commit any other offences.
21. However, the intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offences. These ingredients must be satisfied by the prosecution to prove the guilt against the accused by facilitating the worthwhile evidence even one of the essential elements constituting the offences that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant does not sufficient by itself to saying that the ingredient of Section 504 of IPC has been 30 established by the prosecution, this issue has been extensively addressed by the Hon'ble Suprme Court in the case of Fiona Shrikhande Vs. State of Maharashtra reported in AIR 2014 SC 957.
22. Insofar as Section 333 of Indian Penal Code, 1860, it reveals that voluntarily causing grievous hurt to deter public servant in the discharge of his duty as such public servant. Even each one of the ingredients have been voluntarily causes grievous hurt and the injuries inflicted over the person and it is the domain vested with the prosecution and it has to establish through the evidence of injured by facilitating the worthwhile evidence relating to deter that discharging of his duty as a public servant or with an intent to prevent or deter that person or any other public servant from discharging his duty as such public servant.
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23. Whereas, in the instant case, Section 143 of IPC has been lugged against the accused relating to the unlawful assembly. As per the prosecution case, in the hotel of accused No.2, the alleged incident was taken place. What is unlawful assembly is explained in Section 141 of IPC. An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly. Section 142 of IPC explains about being member of unlawful assembly. Whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. Further, Section 143 of IPC explains about punishment of committing an offence of unlawful assembly. Similarly, the offence under Section 147 itself provides for punishment clause for committing an offence of rioting. But, unlawful assembly that 32 assemble even prior to that incident alleged to be taken as according to their meeting of minds and even the evidence on the part of the prosecution in respect of Sections 143, 147, 148, 504 and 333 of IPC has been ended in acquittal in respect of accused Nos.2 to
6. But, the conviction has been rendered against the accused No.1, who is arrayed as appellant in the aforesaid case whereby all the accused have faced the trial, but there must be some nexus between the common object and the offence committed. But, strangely, the trial Court rendered the conviction against the present appellant. But, Section 149 of IPC reveals and more so it does not create a separate offence but only declares vicarious liability of all the members of an unlawful assembly for the act done in the common object, this issue has been extensively addressed by the Hon'ble Supreme Court in the case 33 of Vinubhai Ranchhodbhai Patel Vs. Rajivbhai Dudabhai Patel reported in AIR 2018 SC 2472.
24. Insofar as applicability of the offence under Section 149 of IPC relating to the common object, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly. It must be within the knowledge of the other members as one likely to be committed in prosecution of common object. If members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of a common object, they would be liable for the same under Section 149. But, in the instant case, the charges were framed against all the accused by holding as a common object to commission of an offence, but co-accused Nos.2 to 6 and their case was ended in acquittal, but the inference of common object even has to be drawn from various factors such as the weapon of offence, 34 the act of violation committed by them and as a result of which reveals the charge sheet even filed by the investigating officer even jointly liable of a members of unlawful assembly. It is settled position of law that once a member of unlawful assembly is established, it is incumbent on the prosecution to establish whether any specific overtact has been assigned to any accused. Even more membership of the unlawful assembly is sufficient. But in the instant case, co- accused Nos.2 to 6 have been taken a particular role, but accused Nos.2 to 6 and their case has been ended in acquittal, but this appellant is convicted for the offence under Section 333 of IPC. But, when once the benefit of doubt arise in the mind of the Court, such benefit must be extended to the accused. But, in the instant case, the appellant who is arrayed as accused No.1 and more so alleged that he was assaulted with means of M.Os.1 and 2 used for causing injuries over 35 the person of P.W.8. Therefore, in this appeal, it requires for re-appreciation of the evidence, if not, the accused No.1, who is arrayed as appellant No.1 would suffer from miscarriage of justice and whereby the prosecution did not establish the guilt of the accused beyond all reasonable doubt.
25. Insofar as the overtact attributed against the accused whether it is inadequate or even adequate evidence has been facilitated by the prosecution it is also an important factor on the part of the prosecution to be assessed, but in the instant case even at a cursory glance of evidence of P.Ws.1 and 8 in consonance with the averments at Ex.P.1 and whereby the instant incident is narrated by P.W.1 being a Police Constable has to be assessed.
26. Insofar as ingredients of Section 149 of IPC, there must be specific ingredients. Even 36 according to Section 141 of IPC, the assembly of five or more person is designated as common object. If the common object is specifically stated it should be by means of a criminal force or it shows a criminal force to compel any person so to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. But mere presence in the assembly is not sufficient and does not make such a person as a member of an unlawful assembly unless it shows that he had done something. As according to some sort of a prior meeting to do the activities as a member of unlawful assembly as even the scope of Section 149 of IPC. Section 149 of IPC even thought it is a wider scope and the membership and inferring the common object and various circumstances have to be taken into consideration and having regard to the omnibus allegation, it is not safe to convict everyone of them by applying Section 149 of IPC. But in the instant 37 case, the co-accused Nos.2 to 6 and their case was ended in acquittal. Therefore, the benefit of doubt which was arises in the mind of the Court by appreciating the evidence of the prosecution and even the doubt that would arise in the mind of the benefit, it should be accrued on the part of the accused alone and none else.
27. At this juncture, it is relevant to place reliance on the judgment of the Hon'ble Supreme Court in the case of Sharad Birdhi Chand Sarda Vs. State of Maharashtra reported in 1984(4) SCC 116, wherein the Hon'ble Apex extensively addressed the issues of circumstantial evidence and held that circumstantial evidence should be conclusive and even the benefit of doubt and further held that if the circumstances in the case are consistent either with the innocence of the accused or with his guilty, then the accused is entitled to be benefit of doubt. Legal 38 principles are not magic incantations and their importance lies more in their application to a given set of facts than in their recital in the judgment.
28. Whereas, at para No.163, it is held that; we then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt.
29. The Hon'ble Supreme Court in the case of Kali Ram V. State of Himachal Pradesh reported in SCC (Crime) P. 1060, held as under:
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the 39 accused and the other to his innocence, the view which is favourable to the accused should be adopted This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence." 30. In the instant case, co-accused Nos.2 to 6
was ended in acquittal and more so they faced trial along with the accused No.1, who is arrayed as an appellant before this Court. But the trial Court was held in conviction against this appellant for the offences punishable under Sections 504 and 333 of Indian Penal Code. Even at a cursory glance of evidence of P.Ws.1 and 8 and so also the averments made in the complaint at Ex.P.1 so also FIR at Ex.P.11 and inclusive of injuries inflicted over P.W.8 indicates at Ex.P.9, wound certificate issued by the doctor, but on close scrutiny of the evidence and even at a cursory glance of the entire material evidence inclusive of the evidence of P.W.13, the clouds and 40 doubt arise in the mind of the Court, but it is the domain vested with the trial Court to appreciate the evidence in a proper prospective and if not the accused would be sufferer and more so there shall be some substantial miscarriage of justice would cause on the part of the accused.
31. It is in the instant case, it is relevant to refer even Section 134 of the Indian Evidence Act, 1872 relating to the quality of the evidence and not the quantity of the evidence. It is settled law that the merit of the statement is important and also it is well known principle of law that reliance can be based on the solitary statement of a witness if the Court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution. It was extensively addressed by the Hon'ble Supreme Court in the case of Raja v. State reported in (1997) 2 Crimes 175.
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32. In the matter of appreciation of evidence of witnesses, it is not number of a witnesses, but quality of their evidence which is important, as there is no requirement in law of evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time-honoured principle, that evidence must be weighed and not counted. The test is whether the evidence has a ring of trust, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Indian Evidence Act. The said principles has been extensively held by the Hon'ble Apex Court in the case of Laxmibai (Dead) through LRs v. Bhagwantbura (Dead) through LRs reported in AIR 2013 SC 1204, whereas in the 42 instant case, it is said that the trial Court was misdirected and misinterpreted the evidence of P.Ws.1 and 8 insofar as the appellant/accused No.1. It is the domain vested with the prosecution to prove the guilt of the accused by facilitating the material evidence. If there is no evidence as facilitated by the prosecution even by proving the ingredients of each one of the offences, then the clouds would arise in the mind of the Court and the benefit of doubt shall be extended to all accused. Therefore, after having gone through the entire material and after re-appreciating the evidence of the prosecution both oral and documentary and after considering totality of the circumstances, the impugned judgment of conviction insofar as accused No.1, who is appellant herein is concerned, needs for interference at the hands of this Court in extending the benefit of doubt in favour of the appellant herein.
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33. In terms of the aforesaid reasons and findings, I proceed to pass the following:
ORDER The appeal filed by the accused No.1 under Section 374(2) of Cr.P.C. is hereby allowed.
Consequently, the judgment of conviction and order of sentence rendered against the appellant/accused No.1 in S.C.No.189/2014 dated 22.08.2016 is hereby set aside. Consequent upon setting aside the impugned judgment, the accused is hereby acquitted of the offences under Sections 504 and 333 of Indian Penal Code, 1860.
In the event appellant/accused No.1 executed any personal bond, the same shall stand cancelled.
Fine amount, if any, deposited by the appellant/accused No.1 shall be returned to him with due identification.
SD/-
JUDGE swk/BL