Karnataka High Court
State Of Karnataka vs Siddaraju on 7 September, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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CRL.A No.2188 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO.2188 OF 2016 (A)
BETWEEN:
State of Karnataka,
by Akkur Police, Channapatna Taluk,
Rep. by State Public Prosecutor,
High Court Building,
Bengaluru-560 001. .. Appellant
(By Sri.K.S.Abhijith, HCGP )
AND:
1. Siddaraju S/o Annappa,
Aged About 36 years,
2. Shivalinga S/o Sannegowda,
Aged About 42 years,
3. Annappa S/o Thantegowda,
Aged Major,
4. Prakash S/o Ningappa,
Aged About 41 years,
All are residents of
Iggaluru Village, Virupakshipura Hobli,
Channapatna Taluk,
Ramangara District. .. Respondents
( By Sri Lakshmikanth K., Advocate
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CRL.A No.2188 of 2016
This Appeal is filed under Section 378(1) and (3) of Code
of Criminal Procedure, praying to grant leave to file the appeal
against the order of acquittal passed by Principal District and
Sessions Judge at Ramanagara, in S.C.No.62/2009 for the
offences punishable under Sections 323, 324, 504, 506, 307
read with Section 34 of IPC, set aside the judgment of acquittal
passed by the Principal District and Sessions Judge at
Ramanagara, in S.C.No.62/2009 for the offence punishable
under Section 307 read with Section 34 of IPC, and convict the
accused/respondents for the offences punishable under Section
307 read with Section 34 of IPC in accordance with law and
pass such other order that this Hon'ble Court deems it
necessary in the interest of justice.
This Criminal Appeal having been heard through Physical
Hearing/Video Conference and reserved for Judgment on
01.08.2023, coming on for pronouncement this day,
Dr. H.B.PRABHAKARA SASTRY, J., delivered the following :
JUDGMENT
The State has filed this appeal under Section 378 (1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as `the Cr.P.C.'), challenging the judgment of acquittal dated 01.03.2016, passed by the learned Prl.District and Sessions Judge, Ramanagara, (hereinafter for brevity referred to as the `Sessions Judge's Court') in S.C.No.62/2009, acquitting the accused of the offence punishable under Section 307 read with Section 34 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as `the IPC'). -3- CRL.A No.2188 of 2016
2. The summary of the case of the prosecution as stated in the charge sheet is that, on the date 16.10.2008, at about 10.00 p.m., in front of Konada Maramma Temple, in Survey No.21/3 of Iggaluru Village, the accused on account of previous enmity and also in furtherance of their common intention of committing the murder of CW-2 Siddegowda, quarreled with him and dragged him to the lands of Sri Mariswamy Gowda, where they assaulted him with hands and kicked him by legs. Further, while accused No.2 was holding the legs of CW-2 and accused No.3 was holding the head and hands of CW-2 and while accused No.4 sat on the chest of CW-2, the accused No.1 using a blade, cut the scrotum of CW-2 Siddegowda, exposing its contents and thus have committed the offences punishable under Sections 323, 341, 324, 504, 506, 307 read with Section 34 of IPC.
3. After perusing the materials placed before it and hearing both side, the Sessions Judge's Court framed charges against the accused only for the offence punishable under Section 307 read with Section 34 of IPC. -4- CRL.A No.2188 of 2016 Since the accused pleaded not guilty, the trial was held, wherein, in order to prove the alleged guilt against the accused, the prosecution got examined in all fourteen (14) witnesses as PW-1 to PW-14, got produced and marked documents from Exs.P-1 to P-15 and got produced Material Objects from MO-1 to MO-4. From the accused's side, neither any witness was examined nor any documents were got marked as exhibits.
4. After hearing both side, the learned Sessions Judge's Court, by its judgment dated 01.03.2016, acquitted the accused of the offence punishable under Section 307 read with Section 34 of IPC. Challenging the same, the appellant - State has preferred the present appeal.
5. The appellant -State is represented by the learned High Court Government Pleader and respondents/accused are represented by their learned counsel. The learned High Court Government Pleader and the learned counsel for the respondents (accused) are physically appearing in the Court.
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6. The Sessions Judge's Court records were called for and the same are placed before this Court.
7. Heard the arguments from both side. Perused the materials placed before this Court, including the memorandum of appeal, impugned judgment and the Sessions Judge's Court records.
8. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the learned Sessions Judge's Court.
9. After hearing the learned counsels from both side, the points that arise for our consideration in this appeal are:
(i) Whether the prosecution has proved beyond reasonable doubt that on the date 16.10.2008, at about 10.00 p.m., in front of Konada Maramma Temple of Iggaluru village, within the limits of complainant-Police Station, the present respondents in furtherance of their common intention of committing the murder of PW-2 (CW-2) Siddegowda, son of Jogi Siddegowda, with the help of blades, cut the scrotum of said PW-2 Siddegowda, thus, exposing its contents and attempted to kill him -6- CRL.A No.2188 of 2016 and thereby have committed the offence punishable under Section 307 read with Section 34 of IPC?
[ii] Whether the judgment of acquittal under appeal warrants any interference at the hands of this Court?
10. Learned High Court Government Pleader appearing for the appellant-State in his argument submitted that the evidence of PW-2 as an injured witness is believable. PW-2 who is an injured, at the earliest point of time, has revealed before the doctor that it was the accused who have committed the alleged act. He has named the accused also. He further submitted that though PW-7 has turned hostile to the case of the prosecution, however, he has spoken about PW-2 sustaining injury. The accused had come prepared with a determination to eliminate PW-2 Siddegowda. Further, their disappearance from the village immediately after the incident has also created serious doubt against them. The medical evidence, as well the report of the Forensic Science Laboratory further corroborate the prosecution case. However, the trial Court by creating many doubts -7- CRL.A No.2188 of 2016 on its own and giving more importance to minor contradictions and variations, has acquitted the accused of all the alleged offences. As such, the appeal deserves to be allowed.
11. Per contra, learned counsel for the respondents/ accused in his argument submitted that non-filing of any complaint by the alleged eye witnesses immediately after they witnessing the incident creates a doubt in the case of the prosecution. He also submitted that there is delay in sending the FIR to the Magistrate. Stating that Kullithimmaiah and Puttaswamy are not examined by the prosecution, learned counsel submitted that the same creates further doubt in the case of the prosecution. He also submitted that the act of PW-2 in not disclosing the details of injuries, particularly to his private organ, to his daughter or to the doctor at Channapatna, further intensifies the doubt in the case of the prosecution. He raised one more suspicion stating that PW-2 has not sustained injuries to other parts of the body, except his scrotum when he is subjected to have attacked by four -8- CRL.A No.2188 of 2016 accused. He also submitted that there are several contradictions in the evidence of PW-2. As such, the learned Sessions Judge's Court has rightly acquitted the accused of the alleged offences.
12. Before proceeding further in analysing the evidence led in the matter, it is to be borne in mind that, the present appeal is filed by the complainant-State against the judgment of acquittal of the accused from the alleged offence punishable under Section 307 read with Section 34 of IPC. Since as per criminal law, the accused is presumed to be innocent until his guilt is proved and further the accused, in the instant case, have already been benefitted by the impugned judgment of acquittal in their favour, this Court, as a Court of appeal upon the impugned judgment of acquittal, must be very careful and cautious in analysing and appreciating the evidence led in the matter.
(a) Our Hon'ble Apex Court, in its judgment in the case of Chandrappa and others -vs- State of Karnataka, reported in (2007) 4 Supreme Court Cases 415, while -9- CRL.A No.2188 of 2016 laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:
" 42(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa's case (supra), the Hon'ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that, it is the cardinal principle in
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CRL.A No.2188 of 2016criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.
(c) In the case of Jafarudheen and others -vs- State of Kerala, reported in (2022) 8 Supreme Court Cases 440, at Paragraph 25 of its judgment, the Hon'ble Apex Court was pleased to observe as below:
"25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
The above principle laid down by it in its previous case was reaffirmed by the Hon'ble Apex Court, in the
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CRL.A No.2188 of 2016case of Ravi Sharma -vs- State (Government Of NCT Of Delhi) and another reported in (2022) 8 Supreme Court Cases 536.
It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed in this matter.
13. Among the fourteen witnesses examined by the prosecution, PW-1 (CW-1) Siddaraju is the son of injured Siddegowda. This witness in his examination-in-chief has stated that, he knows all the four accused in the matter. With respect to 30 guntas of land, there is no good relationship between his family and the accused. The accused were supporting the rival parties with respect to land dispute of 30 guntas.
He has further stated that, on 11.10.2008, in the morning at about 8.00 or 9.00 O'Clock, one Smt.Channamma had left her she-buffalo in the paddy lands of this witness for grazing. Having observed the same, he had tied the she-buffalo near his house. In that connection, he was telling said Smt.Chennamma that at
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CRL.A No.2188 of 2016her ignorance, his paddy crop has been destroyed. However, at that time, Shivalinga (accused No.2), Sunandamma, Savitha and other four to five persons gathered there. Among them, accused No.2-Shivalinga assaulted him. In that connection, he had lodged a complaint with the police, which is at Ex.P-1. The police had advised both the parties not to fight with each other.
About the incident in question, the witness stated that, on the date 15.10.2008, at about 8.00 p.m., his father had been to a Saw Mill, which was near to their place. He had been there at the request of one Sri Thammanna, their relative. On that night, his father- CW-2 did not return home. Thinking that he must have gone to Aretippuru, where the house of their relative Thammanna is located, he and his family members kept quite. On the next day morning i.e., on 16.10.2008, at about 8.00 a.m., while he was in his house, one Sri Kullithimmaiah went there and informed him that his father had fallen in front of his shop. While he was going there, he was informed that his father has been shifted to
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CRL.A No.2188 of 2016Government Hospital at Channapatna by CW-5 and Puttaswamy. At his enquiry with Puttaswamy over the cell phone, he was told that his father has been taken to District Hospital at Mandya. Accordingly, he went to District Hospital at Mandya at about 10.00 a.m., and saw his father who had sustained injury to his scrotum. The Doctor had removed both the testicles. At his enquiry, his father gave him the names of four accused. Thus, incorporating all the details given by his father, he lodged a complaint with the police, which he identified at Ex.P-2.
He also stated that on 21.10.2008, the police visited the place of the offence and drew a scene of offence panchanama. He handed over the white dhoti (dress material), white shirt belonging to his father and two blades. Stating so, the witness has identified the said dhoti and shirt at MO-1 and MO-2 as the blood stained clothes and two blades at MO-3 and MO-4 and described them as the blades, by using it, the accused had cut the scrotum of Siddegowda, his father. He also stated that the police visiting the hospital, have recorded the
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CRL.A No.2188 of 2016statement of his father and he also given his further statement before the police. Stating that, after seizing MOs.1 to 4, the police have drawn a seizure mahazar, the witness has identified the same at Ex.P-3 and his signature therein at Ex.P-3(a). He also stated that, at the time of drawing the said mahazar, one Sri Mariswamy and Sri Nagesh (PW-6 and PW-8) were also there.
He was subjected to a detailed cross-examination from the accused side.
14. PW-2 (CW-2) Siddegowda in his evidence has identified PW-1 as his son, and the accused. He has stated that, with respect to a land dispute, the accused were taking the side of one Sri Krishnachari and his family members. About the incident, the witness has stated that, on the night of 16th October 2008, he had been to a Saw Mill to see his brother-in-law one Sri Thammanna since he had asked him to come. However, since Thammanna did not turn up, he was returning to home. While he was coming near the Sugarcane field of one Sri Puttaswamygowda, on the road leading from Alaguru to
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CRL.A No.2188 of 2016Madduru, all these four accused - Siddaraju, Shivalinga, Annappa and Prakash came there. Among them, accused No.2 caught hold of him firmly and accused No.3 held both his (of this witness) hands on his back, accused No.4 took out the towel which was on his (of this witness) shoulder, at that time, accused No.1 gave a blow on his face. All of them made him to fall on the road. They also lifted him and laid down on the side of the road, There, the accused No.2 sat on his chest, accused No.3 gave a blade to accused No.2 stating that the son of the widow (a scolding in the local language) has to be killed. The accused No.2 cut his private organ. The accused No.3 had one more blade with him. There was moonlight and also streetlight, in which, he has identified the accused who were from the same village. He fell unconscious.
The witness has further stated that, on the next day, when he gained conscious, he felt bleeding from his private organ. It was past-midnight. The witness also stated that one Sri Kullithimmaiah coming on a bicycle, saw him and thinking that somebody murdered him, left
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CRL.A No.2188 of 2016the place and informed in his (of this witness) house. CW-5 and CW-3 came to the spot and on a motorcycle, shifted him to Government Hospital at Channapatna. Since the Doctors there stated that he has no testicles, and advised to take him to a higher medical centre. Accordingly, he was taken to District Hospital at Mandya, where, he was inpatient for twentysix days. The witness has further stated that the accused have burnt his penis with cigarette in order to ascertain whether he was alive or dead. He stated that he has lost his testicles.
Further stating that, at the time of incident, he was wearing white dhoti and a white shirt and dhoti was stained with blood in the incident the witness identified both dhoti and shirt at MO-1 and MO-2 respectively. The witness has identified the two blades at MO-3 and MO-4. Identifying the two photographs at Exs.P-4 and P-5, the witness has stated that they depict the injuries suffered by him in the incident.
This witness was subjected to a detailed cross- examination, where some more details about the incident
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CRL.A No.2188 of 2016were elicited and some statements were elicited from him, which according to the accused, were the contradictions and improvements made by this witness.
15. PW-3 (CW-3) Nagaraju and PW-4 (CW-5) Siddegowda, son of Chikkathammaiah, though were projected as eye witnesses to the alleged incident, however, both of them did not support the case of the prosecution even to a smaller extent. They pleaded their total ignorance about the alleged incident. Even after treating them as hostile, the prosecution in their cross- examination could not able to get any support from them. PW-3 and PW-4 denied the suggestion that they have given statement before the Investigating Officer as per Exs.P-6 and P-7 respectively.
16. Another witness who was also shown as an eye witness to the incident and examined by the prosecution is PW-7 (CW-4) Chikkamari. The said witness in his examination-in-chief has only stated that, on the date of the incident, in the night at about 9.30 to 10.00 p.m., he had been towards the open ground. He heard yelling
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CRL.A No.2188 of 2016noise. Out of curiosity, he went there by that time Siddappa was there. Jogappa was yelling. His clothes were stained with blood, including his nikkar and shirt. Being scared, he returned without talking to Jogappa. He specifically stated that he did not see anybody assaulting said Jogappa.
Since he did not support the case of the prosecution about the occurrence of the incident, he was treated as hostile and the prosecution was permitted to cross-examine him. In his cross-examination, he stated that the person who was found injured was Siddegowda, however, he was also called with an alias name as Jogappa. He stated that, another person who was with him when he saw injured Siddegowda @ Jogappa, was also by name Siddegowda (CW-5).
17. Thus, this evidence of PW-7 that on the night of the incident, he saw the injured Siddegowda @ Jogappa, who had sustained bleeding injures and that along with this witness, CW-5 (PW-4) Siddegowda, son of Chikkathammaiah was also there, is not denied from the
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CRL.A No.2188 of 2016accused side. Thus, the injured PW-2 having sustained bleeding injuries, found fallen on the ground on the night of the incident, is corroborated by the evidence of this witness. Thus, it is only the above witnesses who have spoken about the alleged incident, among whom, PW-1 and PW-2 are the witnesses who have given a detailed account about the alleged incident. Among these two witnesses also, PW-2 is the injured eye witness, whereas, PW-1 is a hearsay witness.
18. PW-1 though is shown to have seen his injured father, but, it was for the first time in the District Hospital at Mandya. Even in his cross-examination, he reiterated that though he was proceeding towards the place of the offence, however, he was told that his father has been shifted to Government Hospital at Channapatna. Before he could proceed towards Channapatna, he was further informed that, at the advise of the Doctors at Channapatna, the injured is being shifted to District Hospital, Mandya and he was asked to go over to Mandya, as such, he went to the District Hospital, Mandya.
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CRL.A No.2188 of 2016Even this witness also in his cross-examination has stated that Kullithimmaiah came to his house on 17.10.2008, at about 7.30 a.m. and informed about PW-2 Siddegowda sustaining injuries. He (this witness) was not at home, however, his relatives by name Puttaswamy went to the spot. The evidence of PW-7, as analysed above, also mentions about the presence of CW-5 Siddegowda, son of Chikkathammaiah, at the spot when they saw injured Siddegowda @ Jogappa found fallen, sustaining bleeding injuries. Therefore, the ignorance pleaded by CW-5 as PW-4 in his evidence about the incident and he visiting the spot, appears to be an intentional ignorance made by said Siddegowda since his presence is confirmed not only by PW-1, but, also by PW- 7, near the spot of the incident.
19. PW-1 in his examination-in-chief has stated that Kullithimmaiah has told him that it was CW-5 (CW-4) Siddegowda, son of Chikkathammaiah and Puttaswamy (not examined as a witness), shifted the injured Siddegowda to Government Hospital at Channapatna,
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CRL.A No.2188 of 2016whereas, in his cross-examination, it was suggested to the witness that he has stated before the Investigating Officer in his statement that, after hearing the news, he visited the spot and found his father fallen there, then he sent his father as a pillion rider in a Scooter along with Siddegowda and Puttaswamy to General hospital, Channapatna. However, the witness denied that he has given any such statement before the police.
20. PW-14 - the Investigating Officer in his cross- examination has stated that, PW-1 in his statement made before him has stated that after hearing the news about his father fallen injured, he went to the spot and found his father lying injured in the lands. Thus, there is a contradiction in the evidence of PW-1 about what he did immediately after receiving the information about his father having sustained injury. However, the said contradiction does not go to the root of the case of the prosecution. The root of the case of the prosecution is who assaulted PW-2 Siddegowda, but, not how PW-1 got the information and whether he had been to the spot of
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CRL.A No.2188 of 2016the incident first or to the hospital. Therefore, the said contradiction is to be taken as a minor contradiction.
21. The Court has to examine whether the evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence, more particularly, keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, as to render it unworthy of belief. Thus, the Court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter, and shake the basic version of the prosecution witness. The evidence of PW-1 appears to be with some minor variation, however, by reading his evidence as a whole would clearly go to show that, it cannot be called as unworthy of belief and the variation being too minor, do not go to the heart of the matter and shake the basic
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CRL.A No.2188 of 2016version of the prosecution. As such, the argument of learned counsel for the accused that the evidence of PW-1 is not worth believable, is not acceptable.
22. PW-2 Siddegowda, the alleged injured witness has given the reason as to what made him to be present in the spot of the incident at the time of the alleged incident. His evidence and that of PW-1 that PW-2 had been to a Saw Mill to meet his co-brother and was returning from the Saw Mill to his home, has not been specifically and categorically denied in the cross-examination of these witnesses. PW-2 has clearly stated that it was these four accused only who restrained him from proceeding further, physically held him and making use of his towel, which he had on his shoulder, covered his mouth and nose and lifting him on the side of the road, assaulted him with the hands and legs and after laying him down, making use of the blade, cut his scrotum.
Even in his cross-examination also, he has given more details about the incident. Though it was elicited in his cross-examination that, at that time, he was slightly
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CRL.A No.2188 of 2016drunk, but, denied a suggestion that he had drunk half a bottle of liquor. PW-1 also in his cross-examination has stated that his father used to consume Gin occasionally. He stated that, whenever his father used to have some asthmatic problem, he used to consume some liquor to get relief from it.
23. Therefore, the defence of the accused that PW-2 was inebriated and that in the said condition, he was returning to home on the said night and by losing his balance, he had fallen on the shoots of sugarcane crops (called as `PÀƼÉ' `koole' in the local Kannada language), which has been categorically denied by PW-2, does not appear to be a strong defence creating any doubt in the case of the prosecution.
Added to the same, the medical doctor who treated PW-2 and given his evidence as PW-5 has denied a suggestion that the injuries found on PW-2 can be caused if a person under intoxication of alcohol fallen on a sugarcane bud while attending to his nature call. He has further stated that, if a person falls on a projected
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CRL.A No.2188 of 2016sugarcane buds, there is a possibility of deep lacerated wound and it also depend upon the impact caused. Therefore, the defence of the accused that PW-2 being intoxicated with liquor, had fallen on a sugarcane shoots and sustained injury, is not acceptable.
24. PW-2 has categorically stated that it was all the four accused who have assaulted him. He has also stated that, when they assaulted on his face, blood did not come from his nose, as well, when he was made to lay down on the ground also, he did not sustain any injury on his buttocks and on the back portion of the thigh. It is for the said reason, the doctor who examined the injured did not find any other injuries on the other parts of the body, except on his private organ.
PW-2 has stated that accused cut his scrotum making use of the blade. He has stated that they had two blades with them. He also stated that they burnt his pennies with a cigarette to know whether he was still alive. In his cross-examination, suggestions were made to show that there were contradictions and variations in his
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CRL.A No.2188 of 2016evidence. However, the witness did not admit that there were any such contradictions or variations. On the other hand, PW-12-the Investigating Officer in his cross- examination has admitted that some of the incriminating statements were not stated before him by PW-2 in a particular manner as PW-2 has stated in his examination- in-chief.
25. A reading of the alleged contradictions and variations would go to show that the said contradictions are about who gave blades to whom and whether PW-2 stared at one of the accused while he was laying down by the side of the road. One more variation is as to who tied his mouth and nose with a towel. Another variation was about the presence of moonlight and streetlight near the spot of the offence. One more improvement is stated about Kullithimmaiah after coming there on his cycle and after seeing him, deciding himself that he (PW-2) was murdered and as such, he going to his home and informing the inmates. The another improvement is that the doctor at Government Hospital, Channapatna, stated that the
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CRL.A No.2188 of 2016testicles were found missing (in PW-2), as such, he must be taken to a higher medical centre.
Even after taking the above as some contradictions and improvements, but, the same would not go to the root of the case and would not vary the narration about the occurrence of alleged incident and the involvement of the accused in the commission of the act alleged against them by the prosecution.
26. Our Hon'ble Apex Court in Karan Singh -vs- State of Uttar Pradesh and others reported in (2022) 6 SCC 52, while observing that before coming to an opinion that there were any material variation in the evidence of the prosecution witnesses which would amount to any serious consequences the Court has to accept the normal conduct of person, was pleased to rely upon its previous judgment in Kuriya -vs- State of Rajasthan reported in (2012) 10 SCC 433. In the said case, the Hon'ble Apex Court in Para-30 of its judgment was pleased to observe that :
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" 30. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis for doubting the case of the prosecution. The Courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence, is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements."
27. It also relied upon its earlier judgment in Shyamal Ghosh -vs- State of West Bengal, reported in
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CRL.A No.2188 of 2016(2012) 7 SCC 646, wherein it was pleased to observe that, what the Court has to see is whether the variations are materials affecting the case of the prosecution substantially. Every variation may not be enough to adversely affect the case of the prosecution. Thus, the Court is required to examine the statement of a witness in its entirety and read the said statement along with the statement of the other witnesses in order to arrive at a rational conclusion. The Court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness.
28. In the instant case, PW-1-the son of the injured, in his examination-in-chief has stated that, after hearing the news about the incident from Sri Kullithimmaiah in the morning, he was on his way to the place of the offence, however, in the midway, he was told that his father has been shifted to Government Hospital at Channapatna. When he enquired Puttaswamy over the mobile phone, said Puttaswamy told him that the injured was taken to
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CRL.A No.2188 of 2016District Hospital, Mandya, accordingly, he (this witness) went to District Hospital, Mandya. In his cross- examination, it was asked to the witness whether he has stated before the police that he went to the spot of the offence and saw that his injured father was laid down in front of shed of Kullithimmaiah in the lands of Puttaswamy and thereafter, he (this witness) sent his father in a scooter making him to sit in-between PW-4 Siddegowda and Puttaswamy. The witness stated that, he has not stated so before the police. The said portion in the complaint was marked as Ex.D-1. Similarly, a paragraph was read out to the witness in the complaint about the manner of commission of the crime by the accused, however, the witness has stated that, he has not stated so before the police at Channapatna. The said portion was marked as Ex.D-2 in the complaint. On the other hand, the witness has stated that, he has stated the contents of Ex.D-2 before the police when he returned to his place from Mandya District Hospital. However, PW-14 the Investigating Officer has admitted a suggestion as
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CRL.A No.2188 of 2016true that portions of statements were made by PW-1 before him as per Exs.D-1 to D-3.
29. Exs.D-1 to D-3 are the part of alleged statements of PW-1 said to have been recorded by PW-14
- the Investigating Officer. Even though PW-1 has denied that he has stated before the said Investigating Officer as per Exs.D-1 to D-3 and assuming that PW-1 has stated as per Exs.D-1 to D-3, still, that portion of the statements at Exs.D-1 to D-3 in no manner diminish the value of the evidence of PW-1. It would not take away his evidence that after coming to know about the incident, he went to District Hospital at Mandya, met his father and heard the details of the incident from him. Whether before going to District Hospital at Mandya, had he met his injured father near the spot of the offence, would not be a material fact and stating or not stating of the same would not affect the case of the prosecution. Even after taking that PW-1 after meeting his father, came to know about the details of the incident, still, the prosecution has not elicited from the said witness in his
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CRL.A No.2188 of 2016examination-in-chief as to what details his father gave to him about the incident. Therefore, even if it is taken that Exs.D-1, D-2 and D-3 are contradictions, they would not in any manner either improve or diminish the reliability of the evidence of PW-1. Admittedly, PW-1 is not an eye witness to the incident, he is only a hearsay witness. Therefore, the said contradiction in the evidence of PW-1 would not take away the case of the prosecution.
30. PW-2 - the injured has given a detailed account of the incident as an injured person. In his cross- examination, he has not stated about his son Siddaraju (PW-1) coming to the place where he was lying after the incident. On the other hand, he has stated that, it was his neighbours Siddegowda (PW-4/CW-5), Puttaswamy and his second son Dhruvaraj, came to the spot and shifted him to Government Hospital at Channapatna. He has stated that, from the place of the offence to the Government Hospital at Channapatna, he was taken on a motorcycle and was admitted to the hospital by his neighbours Siddegwoda and Puttaswamy. Therefore, when he was
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CRL.A No.2188 of 2016not laid down near the shed of Kullithimmaiah or Thimmegowda, the question of PW-1 coming over there and seeing him near the shed, would not arise. As such, the evidence of PW-1 that he had not given further statement before the Investigating Officer that his father was laid down in front of shed of Kullithimmaiah, would not arise and statement of PW-1 that he has not stated so before the Investigating Officer appears to be more reliable.
31. PW-2 in his cross-examination has given more details about the incident and his health condition after he was said to have been attacked and assaulted by the accused. He has stated that, initially he did not reveal the details of the incident either before Siddegowda (PW-4/CW-5) or before Puttaswamy or even before the doctor at Government Hospital, at Channapatna. He has stated that, he was shivering, feeling cold and with pain. He has stated that, in the evening on the next day of the incident, he could speak slowly and narrate the details about the accused cutting his scrotum to his son i.e.,
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CRL.A No.2188 of 2016PW-1. Thus, even in his cross-examination also, he adhered to the contention that it was all the four accused who attacked and assaulted him and also cut his scrotum. In that direction, he has identified the clothes said to have been worn by him at the time of the incident which were said to be blood stained during the incident and also the two blades said to have been used in cutting his scrotum, from MO-1 to MO-4.
32. In the cross-examination of PW-2, attempts were made to elicit some alleged contractions in his evidence. It was suggested to the witness that certain details about the incident and the individual overtacts of the accused have not been stated before the police in the manner as stated by him in his examination-in-chief, however, the witness has not admitted those suggestions as true. What was suggested to PW-2 were put to PW-12, the Police Assistant Sub-Inspector, who claims to have recorded the statement of PW-2 Siddegowda in the District Hospital at Mandya on 20.10.2008 and suggested to the witness that those statements were not made before him by PW-2
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CRL.A No.2188 of 2016Siddegowda. PW-12 admitted those suggestions as true. Thus, the learned counsel for the respondents/accused submitted that there were major contradictions in the evidence of PW-2.
33. A careful perusal of the evidence of PW-2, PW-12 and the statements shown to be of PW-2 Siddegowda, a portion of which is marked as Ex.D-4, would go to show that, about the manner of occurrence of the incident, PW-2 has stated in his earliest statement before the Investigating Officer. Though PW-12, the Assistant Sub-Inspector has stated that he recorded the statement of injured Siddegowda on the date 20.10.2008 and stated that PW-2 has given his statement before him as per Ex.D-4, however, the exhibited document at Ex.D-4 is shown to be a statement given by injured Siddegowda not on 20.10.2008, but, it was on 18.10.2008. Apart from the document showing the date of its recording, even the signature of the doctor who is shown to have signed the document with his rubber stamp also bears the date as 18.10.2008. Therefore, PW-12 who was already retired
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CRL.A No.2188 of 2016from the services on the date of he giving his evidence on 17.11.2014 without seeing the statement of Siddegowda, has admitted all the suggestions about alleged contradictions made from the accused side as true.
34. PW-12 has admitted that PW-2 has not stated before him that accused No.2 hugged him. However, in the statement of the injured before the Investigating Officer, it is stated that the accused hugged him. PW-12 has admitted a suggestion as true that PW-2 has not stated before him that accused No.1 assaulted him on his face, whereas, the statement of PW-2, as injured, shows that PW-2 has stated that accused No.1 assaulted on his face.
PW-2 in his evidence has given the details about the individual overtact of the accused as to what act was committed by each one of the accused. Though PW-12 has admitted as true that such details were not given, however, the statement before the police shows that injured/PW-2 has stated that after the assault on his face, the accused made him to fall on the ground and then they
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CRL.A No.2188 of 2016cut his private organ with blade. Thus, even though PW-2 is not shown to have stated before PW-12 about the individual overtact of each of the accused, however, in his statement before the Police Officer, he has stated that it was all the four accused who have jointly committed the act of restraining him from proceeding further, assaulting him, making him to fall down and then cutting his private organ with the blade. As such also, the alleged contradictions said to have been elicited in the cross-examination of PW-2 from the accused side would not amount to material contradictions. The evidence of PW-2 when read in its entirety, would clearly go to show that PW-2 has categorically stated that it was the present accused and accused alone, who are four in number, committed the alleged act against him, including cutting of his scrotum.
35. Our Hon'ble Apex Court in Rakesh and another - vs- State of Uttar Pradesh and another, reported in (2021) 7 SCC 188, while making an observation with respect to appreciation of evidence in a criminal trial, was
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CRL.A No.2188 of 2016pleased to hold that, one is required to consider the entire evidence as a whole with other evidence on record. Mere one sentence here and there and that too, to the question asked by defence in cross-examination, cannot be considered stand alone.
Thus, when the evidence of PW-2, the injured, in its entirety is read and compared to his statement before the Investigating Officer, the alleged variations are only minor variations and they are not contradictions as canvassed by the learned counsel for the respondents. Further, the said variation is also minor and would not go to the root of the case of the prosecution.
36. In Karan Singh's case (supra) also, the Hon'ble Apex Court while considering the facts and circumstances of the case before it, was pleased to observe that, what is to be seen is whether the version presented in the Court was substantially similar to what was said during the investigation. It is only when the exaggerations fundamentally changes the nature of the case, the Court
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CRL.A No.2188 of 2016has to consider whether the witness was stating a truth or not.
In the instant case, as observed above, the version of PW-2 as injured does not deviate from his statement made before the Investigating Officer at the earliest opportunity. In his statement before the Investigating Officer, as well in his evidence before the Court, he consistently stated that it was the present accused alone who restrained him while he was proceeding to his house from the Saw Mill, assaulted him and stating that his testicles must be removed and he must be eliminated, cut his scrotum. Thus, the basic primary and important attribution of the overtact against the accused has remained unchanged in the evidence of PW-2 from the one that was stated before the Investigating Officer. However, the trial Court did not notice the same and it opined that there are lot of contradictions in the evidence of PW-1 and PW-2. Thus, the argument of learned counsel for the respondents/accused that there are material contradictions in the evidence of PW-2, is not acceptable.
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CRL.A No.2188 of 2016
37. As analysed above, it is PW-2 alone who as an injured witness has supported the case of the prosecution in full, including giving the evidence about the overtact of the accused. Even though PW-1 has stated that it was the accused who committed the alleged offence, however, he is only a hearsay witness. As analysed above, the alleged eye witnesses, more particularly, PW-3, PW-4 and PW-7 have not supported the case of the prosecution, still, the evidence of PW-2 appears to be trustworthy and as an injured witness, he has given the true account of the incident.
38. In Lakshman Singh -vs- State of Bihar (Now Jharkhand) with Shiv Kumar Singh and others -vs- State of Bihar, reported in (2021) 9 SCC 191, the Hon'ble Apex Court in sub-paragraphs 9.1 and 9.2 of its judgment, referring to its previous judgment in the case of Abdul Sayeed -vs- State of M.P., reported in (2010) 10 SCC 259, was pleased to observed that the evidence of injured witnesses is entitled to a great weight and very cogent and convincing grounds are required to discard their
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CRL.A No.2188 of 2016evidence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. It was further observed by their Lordships that, being injured witnesses, their presence at the time and place of occurrence of the incident cannot be doubted.
In the instant case also, as observed above, PW-2 as a sole injured witness, who has given a detailed account of the incident and who has narrated the involvement of all the four accused and their overtact, as observed above, in consistent both in his statement before the Investigating Officer, as well in his evidence as PW-2. The alleged contradictions in true sense were not contradictions, but, minor variations in the form of improvement in his evidence. Those variations since have, as observed above, not going to the root of the case of the prosecution and would not result in introducing any new fact in the case of the prosecution, the evidence of sole witness i.e., PW-2 is credible and believable. However,
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CRL.A No.2188 of 2016the trial Court without analysing his evidence in an appropriate manner, has jumped to a conclusion that it suffers with material contradictions and proceeded to disbelieve it.
39. The evidence of PW-2 - injured that the accused cut his scrotum using the blades at MO-3 and MO-4 and that he was told by the doctor that he has lost his testicles, is further corroborated by the medical evidence of PW-5/CW-16 Dr.Habeeb Jhan. As observed above, the said doctor who has been working in the District Hospital, Mandya, as a Casualty Medical Officer has stated that, when PW-2 - the injured was brought to his hospital after getting initial treatment from Government Hospital at Channapatna, he enquired PW-2, who told him that he was assaulted at his village around 9.30 p.m. on 16.10.2008 by Shivalinga, Siddaraju and his brothers. The witness has also stated that PW-2 told him that he was assaulted with hands and blades.
40. Thus, at the earliest point of time, PW-2, the injured has stated before the Medical Doctor who treated
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CRL.A No.2188 of 2016him as to how he sustained injuries and who have inflicted the injuries upon him. He has specifically named the accused also. The Medico-Legal Case register (MLC) extract, a copy of which is produced at Ex.P-9 also shows that, it is mentioned in it that injured Siddaraju had the history of assault at his village around 9.30 p.m. on 16.10.2008, assault by Shivalinga, Siddaraja ...... brothers. Thus, at the earliest point of time, the injured has named as to who are all the assailants.
41. PW-5 - the doctor has also stated that the said MLC Register is in his handwriting and he has identified the same. He has further stated that, injured had sustained tenderness over occipital area. This corresponds to the evidence of PW-2 that accused No.1 assaulted on his face. PW-5 - the doctor has also stated that injured had sustained deep irregular lacerated wound with clotted blood at the base of the scrotum measuring 3 x 6 cms. with sharp edges, scrotal sack was empty. This corroborates the evidence of PW-2 that accused cut his scrotum by the blade. PW-5 - the doctor has also stated that the scrotum
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CRL.A No.2188 of 2016can be cut and torn with MO-3 and MO-4 (the blades) and that the injury that was caused to PW-2 may cause fatal to his life. He also stated that, because of the said injury, PW-2 has lost his reproduction capacity.
PW-5 - the doctor has further stated that injured PW-2 was an inpatient in their hospital from 17.10.2008 to 09.11.2008 in Surgery Ward and the Surgery Department closed the wound and opined that PW-2 had laceratous scrotum with bilateral castration (removal of both testis) and it was grievous in nature. With this, the witness has identified the Wound Certificate at Ex.P-8 and the MLC Extract at Ex.P-9 and reference letter by Channapatna Government Hospital at Ex.P-10. Therefore, the medical evidence by the doctor corroborates the evidence of PW-2 that his scrotum was cut by the accused, who initially assaulted him and cut his scrotum by using the blade.
42. PW-6 and PW-8 though were projected as panchas for the seizure panchanama at Ex.P-3, whereunder the blades produced by PW-1 were said to have been seized by the Investigating Officer, however,
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CRL.A No.2188 of 2016the evidence of PW-12 - the Police Officer shows that he has seized the blades produced during his visit to the place of offence for conducting the scene of offence panchanama as per Ex.P-3. He has also stated that, under the same panchanama, he has seized the blood stained clothes worn by the injured at the time of the incident and they were produced by the complainant (PW-1). PW-14 - the Investigating Officer has stated that he has sent those articles for their chemical examination to the Forensic Science Laboratory, the report of which is marked at Ex.P-15. The said report shows that all the four articles i.e., shirt, dhoti (panche) and two blades were all stained with blood here and there and the said blood was found to be of human blood of Group-A. Thus, the medical evidence, the weapons used, the chemical examination of the weapons also corroborates the evidence of PW-2 that he sustained grievous injury and his scrotum was cut by the accused by using the blades at MO-3 and MO-4. However, this aspect also was not properly noticed and appreciated by the trial Court.
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CRL.A No.2188 of 2016
43. The defence of the accused is a general denial of the incident and a specific contention that PW-2 while walking in a drunken condition, fell down on the shoots of the sugarcane and sustained the injuries. Suggestions to that effect were made in the cross-examination of PW-1, PW-2, PW-5 and PW-10. Though PW-1 and PW-10 have stated that occasionally the injured used to drink and PW- 2 has stated that, at the time of incident, he had slightly drunk, however, he categorically denied that he had lost his control due to consumption of alcohol. As observed above, the medical doctor i.e., PW-5 categorically denied a suggestion that the injury which PW-2 had on his scrotum can be caused if a person under intoxication of alcohol falls on a projected sugarcane buds while attending to his nature call. Therefore, the defence taken up by the accused also would not stand. Thus, it is established beyond reasonable doubt that it was the accused and accused alone who in furtherance of their common intention have committed the act of assaulting PW-2 and cutting his scrotum.
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CRL.A No.2188 of 2016
44. The next point to be considered is whether the proven act of the accused amounts to an attempt to murder. Needless to say that, every act of inflicting injury, may be by using the weapons like blade, by itself would not amount to an act of attempt to murder unless the prosecution establishes that had the accused been successful in their act, the injured would have been died and the act of the accused would have been a murder. In the instant case, even according to PW-2, he was conscious when he was taken to Government Hospital at Channapatna. Though PW-5 - the Doctor at District Hospital, Mandya, has stated that injuries may cause fatal to his life, however, has opined that it was grievous in nature. Had really the intention of the accused was to cause the death of PW-2, it was not impossible for them to achieve their purpose in the spot itself since they were four in number, armed with sharp edged weapons i.e., two blades. Even according to PW-2, the accused put a burning cigarette on his penis to know whether he is living or dead. Thus, the accused could have ascertained
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CRL.A No.2188 of 2016and confirmed his death before leaving the spot. However, after cutting his scrotum, PW-2 fell unconscious in the spot. Therefore, he is not aware whether any other witness has seen the incident. Admittedly, the eye witnesses i.e., PW-3, PW-4 and PW-7 have not supported the case of the prosecution. Therefore, it has to be taken that accused have left the place even after knowing that PW-2 injured is not dead, however, they were satisfied with inflicting injury of cutting his scrotum.
45. Further, though the prosecution has attributed the motive of a land dispute between the accused and the family of the injured, and the accused taking the side of the vendors of 30 guntas of property in favour of the family of the injured, however, neither PW-1 nor PW-2 have stated that the said motive was so grave that accused had determined to kill PW-2. Therefore, the motive also cannot be taken as so grave that under any circumstances to kill PW-2, rather, the motive is the one of attacking and assaulting PW-2 for the alleged property dispute with respect to 30 guntas of land. In such a
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CRL.A No.2188 of 2016situation, it is not safe to hold that the act of the accused in cutting the scrotum of PW-2 with a sharp edged weapon, which is the blade here, would amount to an attempt to commit the murder of PW-2. On the other hand, the act of the accused amounts to voluntarily causing grievous hurt by dangerous weapons and in dangerous means, which is an offence punishable under Section 326 of IPC.
46. Thus, we are of the view that prosecution though could able to prove the alleged guilt of the accused, however, the same is short of the essentials of Section 307 of IPC, but, is sufficient to attract Section 326 read with Section 34 of IPC. The trial Court without properly analysing the evidence both oral and documentary placed before it has, as observed above, in a hurried manner, noticed the alleged contradictions as the true contradictions in the evidence of PW-1 and PW-2 and proceeded to disbelieve the case of the prosecution. Since the said error committed by the trial Court is required to be rectified and since the prosecution has proved that all
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CRL.A No.2188 of 2016the four accused who have jointly committed the act of inflicting grievous injury with dangerous weapon against PW-2 Siddegowda, have committed the act of voluntarily causing grievous hurt by dangerous weapons and by dangerous means to PW-2, the offence punishable under Section 326 read with Section 34 of IPC has been established. As such, the impugned judgment warrants interference at the hands of this Court.
47. Accordingly, we proceed to pass the following:
ORDER [i] The Criminal Appeal stands allowed in-part;
[ii] The judgment in Sessions Case No.62/2009, dated 01.03.2016, passed by the Prl.District and Sessions Judge, at Ramanagara, acquitting the accused of the offence punishable under Section 307 read with Section 34 of the Indian Penal Code, 1860, stands set aside;
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[iii] The Accused Nos.1 to 4 i.e., Siddaraju, son of Annappa, Shivalinga, son of Sannegowda, Annappa, son of Tantegowda and Prakash, son of Ningappa, are convicted for the offence punishable under Section 326 read with Section 34 of Indian Penal Code, 1860.
To hear on sentence, call on 11/09/2023 as prayed.
Sd/-
JUDGE Sd/-
JUDGE bk/
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Dr. HBPSJ & ABKJ:
11.09.2023 HEARING ON SENTENCE
48. Heard the submission of the learned Addl.State Public Prosecutor for the appellant on the quantum of sentence.
49. Learned counsel for the accused/respondents No.1 to 4 submits that respondents No.1, 2 and 4 have got aged mother suffering from ailment. They have also small children who are dependent upon respondents No.1, 2, and 4. He further submits that respondent No.3 is a heart patient. Stating that the alleged act of inflicting grievous injury was caused by accused No.1, whereas, the remaining accused are alleged to have been all holding injured firmly enabling the accused No.1 for committing the offence, learned counsel prays this Court to take a lenient view in ordering the sentence.
50. Per contra, learned Addl.State Public Prosecutor in his submission submits that irrespective of the fact that which among the accused had inflicted the injury upon the victim, it is to be noticed that all the four accused had
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CRL.A No.2188 of 2016shared their common intention to inflict such injury upon the victim. He further submits that merely stating that accused are family holders, would not be a mitigating factor to reduce the sentence. With this and submitting to consider the facts and circumstances of the case and its nature, that too, cutting the private organ with the blade, the learned Addl.State Public Prosecutor requests for imposing the maximum punishment which can be ordered for the proven guilt.
51. It is the sentencing policy that the sentence ordered must be proportionate to the gravity of the proven guilt. It shall be neither exorbitant nor for the name-sake.
52. Hence, keeping the above principle of the sentencing policy and considering the facts and circumstances of the case and also the alleged mitigating factors canvassed before the Court, we proceed to pass the following:
ORDER ON SENTENCE [1] The accused No.1 - Siddaraju, son of Annappa, accused No.2 - Shivalinga, son of Sannegowda, accused No.3 - Annappa, son of
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Thantegowda and accused No.4 - Prakash, son of Ningappa, all are residents of Iggaluru Village, Virupakshipura Hobli, Channapatna Taluk, Ramanagara District, are sentenced to undergo rigorous imprisonment for a period of five years each and to pay a fine of `15,000/- (Rupees Fifteen Thousand Only) each and in case of default of payment of fine, to undergo rigorous imprisonment for a further period of three months for the offence punishable under Section 326 read with Section 34 of the Indian Penal Code, 1860.
[2] The accused are entitled for the benefit of set-off under Section 428 of the Code of Criminal Procedure, 1973.
[3] The accused shall surrender before the learned Sessions Judge's Court within fortyfive (45) days from today and serve the sentence as ordered above by this Court.
[4] Out of the fine amount paid by the accused, a sum of `50,000/- be paid to PW-2-Siddegowda, the injured, as compensation to the victim under Section 357 of Code of Criminal Procedure, 1973.
[5] The remaining sum of `10,000/- shall go to the State.
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CRL.A No.2188 of 2016
[6] MO-1 to MO-4 are ordered to be destroyed as per the order of the trial Court, however, after the period of appeal and in case, if no appeal or Special Leave Petition is preferred by the accused.
[7] A free copy of this judgment be furnished to the accused immediately by the Registry.
Registry to transmit a copy of this judgment along with Sessions Judge's Court records to the concerned Sessions Judge's Court immediately, for doing needful in the matter.
Sd/-
JUDGE Sd/-
JUDGE bk/