Karnataka High Court
Srikant S/O Rayappa Salaboor vs The State Of Karnataka on 8 July, 2020
Author: P.N.Desai
Bench: P.N.Desai
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 08th DAY OF JULY, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
CRIMINAL APPEAL No.3509/2013
BETWEEN:
Srikanth S/o Rayappa Salaboor
Age: 25 years, Occ: Welding work,
R/o Hirenaganoor village,
Tq: Lingasugur Dist: Raichur
...APPELLANT
(BY SHRI ISHWARAJ S. CHOWDAPUR ADVOCATE)
AND:
The State of Karnataka,
(through Hatti Police Station)
Represented by Addl. State Public
Prosecutor, High Court of Karnataka
Circuit Bench at Gulbarga.
... RESPONDENT
(BY SRI SHARANABASAPPA M.PATIL HCGP)
This appeal is filed under section 374 (2) of Criminal
Procedure Code, praying to set aside the impugned
judgment of conviction and order of sentence including
fine passed in S.C. No.66/2008 by the Prl. Dist. &
Sessions Judge Raicur dated: 17-12-2012 and acquit
the appellant of the charge leveled against him, in the
interest of justice and equity.
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This Appeal having been heard, reserved for
Judgment and coming on for pronouncement of
Judgment this day, this court delivered the following;
JUDGMENT
This appeal arises out of the Judgment of conviction and sentence passed by the learned Prl. District & Sessions Judge, Raichur against the accused for the offence punishable under Section 307 of Indian Penal Code sentencing him to undergo imprisonment for a period of five years and to pay fine of Rs.5000/-, in default of payment of fine to undergo simple imprisonment for one year.
2. The brief case of the prosecution is that, on 26-10-2007 at about 8.00 p.m. at Hirenaganur village, when the complainant Prakashappa who is the father of injured after dinner came out of the house towards road and he found near corner of church somebody was 3 quarreling with his son. Then he went there and saw friends of his son viz, Netiraj, Arogyappa, Dodmanappa and Vijaykumar were also present. He found there Nagareddy, Timmangouda, Mahadevappa, Hussainsab, Ningappa, Siddappa, Chandamma, Basavaraj, Antonappa, Deshappa and Hussainsab S/o Hussainab all of them were stating that, they must take away the life of this Anand and his hands and legs must be broken, at that time accused Srikant and Nagareddy took the knife and stabbed on left side ear and ran away, he tried to rescue his son, but accused threatened him stating that they will eliminate his entire family. Thereafter-words his injured son was taken by his relative Augistine and Arogyappa to Hattigold hospital.
3. In this regard on 26.10.2007 at about 21.30 hours Mahadevappa ASI received the information about incident and visited the hospital. He received the written complaint given by PW.1 Prakashappa as per Ex.P.1 4 and returned to the police station and on the basis of the same he registered a case in Crime No.192/2007 for the offences punishable under Sections 143, 147, 148, 324, 114, 307 & 506 R/w Sec.149 of Indian Penal Code and sent the FIR to Court as per Ex.P4. On the next day, he visited the scene of offence and drawn scene of offence panchnama as per Ex.P.5. He searched for accused and returned. In the evening at 4.30 p.m., the accused had come to the police station to lodge complaint against the injured complainant, so he arrested him. Then accused gave voluntary statement stating that, if he is taken, he will show the knife and accordingly he recorded the voluntary statement of the accused. Then he secured panchas. The accused took himself and panchas to Hirenagnur village near a land of one Hussainsab and near the bush he took out M.O.1 knife. The ASI seized the same by drawing seizure panchnama as per Ex.P.7, then he recorded the further statement of PW.1 and statements of PW.s 2 to 7. 5 Thereafter words he handed over further investigation to P.S.I Dattataraya. PW.8 Dattataraya received the said investigation from ASI, he recorded the statement of CW.2 on 06-11-2007 at hospital and received the wound certificate as per Ex.P.3 on 02-01-2008 from Hattigold hospital and after completion of investigation he filed charge sheet.
4. The said charge sheet is filed before the learned J.M.F.C., Lingasugur for the offences punishable under sections 324, 504 & 307 of Indian Penal Code. This case is committed to the Sessions Court as one of the offence is under section 307 of Indian Penal Code, is exclusively triable by the Court of Sessions.
5. Thereafter words the learned Prl. District & Sessions Judge, Raichur framed the charge only for the offence under section 307 of Indian Penal Code against this appellant/accused, but not framed any charge 6 under sections 324 & 504 of Indian Penal Code. The accused has pleaded not guilty and claims to be tried. Thereafter words, prosecution examined eight witnesses as PW1 to PW8, got marked seven documents as Exs.P1 to Ex.P7 and got identified one material object as M.O.1 and closed its side evidence.
6. The statement of accused as required U/sec.313 of Code of Criminal Procedure was recorded. The accused has not chosen to lead any defense evidence, but Ex.D.1 to Ex.D.7 got marked during the cross-examination.
7. After hearing arguments, the learned Prl. Sessions Judge Raichur convicted the accused for the offence punishable under Section 307 of Indian Penal Code and imposed sentence to undergo simple imprisonment for five years and to pay fine of Rs.30,000/- in default of payment of fine he shall further undergo simple imprisonment for one year. It is 7 further ordered to pay Rs.20,000/- out of the fine amount to PW.2 as compensation.
8. Aggrieved by the said conviction, the appellant/accused has preferred this appeal on the following grounds:-
That the conviction and sentence is contrary to law and evidence. That PW.s 2 to 4 are relatives and interested witnesses. In the same quarrel the appellant/accused has also sustained injuries. Accused has filed complaint against PW.s 2 to 4 in this case. The Investigating Officer has filed charge sheet against them. The said case is also committed to Sessions Court for trial as a counter case. The said case is registered as S.C No.165/2008. The evidence of injured is contrary to the statement recorded by the police. PWs 2 to 4 first attacked the appellant/accused then quarrel started between them. PW.s 2 to 4 have suppressed the truth and projected a false case against 8 the appellant /accused. The prosecution has not explained how the appellant/accused has sustained injuries, he has assaulted in his self defense. The learned Sessions Judge has not explained why the appellant/accused carried the knife. The accused need not explain it. The Investigating Officer has not seized any blood stained cloths. Though complaint is filed against 12 persons but the charge sheet is filed only against one accused. There are no circumstances to draw inference that, accused had any intention to kill Anand. There is no clear and cogent evidence before the Court to convict the appellant/accused and prays to set aside the impugned judgment of conviction.
9. I heard the learned counsel for the appellant/accused and the learned High Court Government Pleader for the State.
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10. The learned counsel for the appellant/accused argued that, PW.1 is a hearsay witness, but he has lodged complaint as per Ex.P.1 as a eyewitness. Though the complaint is filed against so many persons but the charge sheet is filed against this accused, so the evidence of that witness itself creates a doubt. Even the evidence of prosecution witnesses clearly indicates that, the accused has no motive or intention to kill the injured. He was going for natural call, there is no question of he taking any knife. In fact, the accused himself was assaulted by these witnesses. He has lodged complaint against them and charge sheet is also filed and case is also committed to the Sessions Court, but the said cases are not tried as case and counter case. So from the evidence of prosecution witnesses it is evident that, there is no intention to kill the injured. The Doctor has not given any reason and there is nothing to show that how many days he was in hospital. No medical records were produced. Even the 10 case does not fall under section 324 of Indian Penal Code also. The learned counsel argued that, the learned Sessions Judge has not appreciated the evidence in a proper perspective. The entire evidence of prosecution is full of contradictions and inconsistencies and creates a doubt and prays to acquit the accused.
11. As against this, the learned High Court Government Pleader argued that, because of the love letter written by the accused in the name of Arogyappa when they tried to question him, the accused has assaulted Anand with knife. There is medical evidence to support it. Looking to the nature of the injury and part of the body, the intention of the accused is very clear. The learned Public Prosecutor ofcourse did not furnish anything as to what happened to that counter case, but the learned High Court Government Pleader supported the Judgment of the Sessions Court and prays to dismiss the appeal.
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12. From the above materials, evidence and arguments the point that would arise for my consideration are as under:-
01. "Whether prosecution proved its case beyond the reasonable doubt that on 26-10-2007 at about 8.00 p.m., near the land of one Hussainsab on Anwari road at Hirenaganur village appellant/accused stabbed PW.2 Anand with M.O.1 knife with an intention or knowledge to cause bodily injury and accused knew that, it likely to cause death or such bodily injury which was in ordinary course of nature would cause death or he attempted to cause death and thereby committed an offence punishable under section 307 of Indian Penal Code?"
02. Whether the Judgment of conviction of learned Sessions Judge is not based on sound principles regarding appreciation of evidence in criminal cases and needs interference of this court?12
13. My answer to the above points is as under
for the reasons given below.
14. PW.1 Prakashappa is the complainant and also father of the injured Anand. In his evidence he has stated that, Chinappa and Anand are his children. About four years back, there was a quarrel between his son and accused and at that time there was a injury on the left rib and right ear of his son. At the time of incident he was in his house and he went to place of offence after hearing the galata. Near church Arogyappa, Netiraj, Jayappa, Vijaykumar were bringing his son Anand. When he enquired, they told that accused has stabbed his son. The cloths of his son were blood stained. He saw it in the church light. Then his son was taken to Hatti hospital. He has handed over the complaint written by his son Chinnappa to the police as per Ex.P.1. Then his son Anand was shifted to Raichur hospital. Further he has stated that, though he has 13 given complaint that others have also assaulted, but he enquired and came to know that, except accused others have not assaulted. This incident has taken place as the accused has written a love letter to his grand daughter in the name of one Arogyappa and this accused and his son have worked together and for the sake of money there was a quarrel. This is his examination in chief. So, his evidence is contrary and inconsistent with the evidence of the prosecution witnesses and the evidence of Investigating Officer. Because this witness admits that, Ex.P.1 is signed and he himself has given complaint. But he states that, his son Chinnappa has written Ex.P.1 complaint and his evidence clearly indicates that, he has not seen the accused assaulting injured Anand, though in Ex.P.1 he has stated as if he is a eyewitness to the incident. But before the court he has stated that, he has not seen the accused assaulting, but only on the basis of say of his son he has lodged the complaint.
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15. In the cross-examination he has stated that, Anwari village is about 5 kilo meters from their village and Hutti village is about 8 kilo meters and there were buses to go to their village. He has also admitted that, accused is also residing in their lane. He has also stated that, there is no enmity between himself and accused. Further he has admitted that, his son Anand does coolie work and accused is also going for coolie work. He has admitted that, Vijaykumar is having one sister by name Asha, but he has stated that, he do not about love affair between Asha and Arogyappa. He also came to know that as per the say of Arogyappa the letter was written. He has denied the suggestion that, his son Anand is doing "Gundageri" i.e., Rowdyism" in the village. He has denied the suggestion that, this accused objected for Gundageri of his son as such he lodged a false complaint. He has admitted that, accused has also lodged complaint against him and his sons. He has also admitted that there is no relationship between 15 Asha and accused. He has stated that, police have taken his statement in the hospital. He do not know what is written in Ex.P.1 as it is written by his son Chinnappa. He has admitted that, himself and accused were not in good terms. He has denied the suggestion that, his son and Arogyappa have assaulted the accused and caused injury. This is his evidence. So, his evidence will not help the prosecution. Because as per Ex.P.1 he is a eyewitness. As per evidence before court he is a hearsay witness. The written complaint Ex.P.1 contents and his oral evidence before the court are totally inconsistent and contrary to each other thereby makes the prosecution case doubtful at the very first stage itself.
16. PW.2 Anand is the son of complainant. He has stated that, on 26-10-2007 at about 8.00 p.m., himself, Vijaykumar and Arogyappa have gone to attend the nature call and were returning. At that time both of 16 them were discussing about enquiring accused about letter written to the sister of Vijaykumar in the name of Arogyappa, when all three persons were coming near Hussainsab land accused also came there. They stopped accused and asked him as to why he has written a letter to sister of Vijaykumar in the name of Arogyappa, then the accused abused them by stating as "Sule Makale"
and stated that he has written letter what-ever they want to do they can do. Then they told accused not to abuse, at that time the accused took out a knife and assaulted on the right rib of PW.2 and also when he came to assault on his neck, PW.2 escaped but it touched his right ear and he sustained injury. Then Vijaykumar and Arogyappa rescued him, Anatonappa and Netiraj also came there, then he was taken to Priest of Church and he informed about the incident. Then he was taken on a motor-bike to Hatti hospital. There the Doctor gave him first aid treatment and sent him to Opek hospital Raichur. He has also stated that, there 17 was a moon light at the time incident. He has also admitted that, on the same day in the evening there was a quarrel between himself and accused about the work carried out and the financial matter, there was also quarrel about the love letter, so in that back-ground the accused has also assaulted him. So this is his examination-in chief.
17. He has admitted in his cross-examination that, at Surpur Rice Mill, himself and accused were working for a period of three months. He has stated that, he has not seen any love letter stated to have been written by the accused. He has also admitted that, about 2 -3 years back there was a quarrel between himself and accused when they were in state of intoxication, but no complaint was lodged. The quarrel had taken place between himself and accused on the same day evening i.e., the day of this incident in their village. He has denied the suggestion that, they 18 themselves stopped the accused when he was going to attend natural call and assaulted him. He has denied the suggestion that, while assaulting the accused he fell down and came in contact with sharp edged stone and sustained injury. He has admitted that, the accused has lodged a complaint against him and Arogyappa and charge sheet is also filed. CW.s 4 and 5 are his relatives. He has stated that, he has not given any statement before the police as per Ex.D.1, Ex.D.2 and Ex.D.3. He has stated that, he was unconscious in the hospital and he gained consciousness only after 5 - 6 days of the incident and he was admitted to Opek hospital. The police have taken his blood stained cloths. So his evidence also indicates that, prior to this incident, there was a quarrel between himself and accused and earlier also there was quarrel between them. Both of them were working together. He has not seen any love letter stated to have been written by this accused. No such love letter is produced in this case. It is also evident 19 that, they themselves wanted to ask the accused in this regard and when the accused was going, the injured and other two witnesses stopped the accused and asked him in this regard. It is stated by them that, accused abused them, they asked the accused why he is abusing them, at that time this incident took place. Admittedly the charge sheet is also filed against this injured and other witness and a separate SC number is also given. So, evidence of this witness injured PW.2 clearly indicates that there was quarrel between them earlier also. Subsequently there is quarrel between them about financial matter about work done by them at Surpur. On date of alleged incident in fact there was galata between accused and injured and other prosecution witnesses. In this regard accused had lodged complaint. As per Ex.D.1, Ex.D.2 & Ex.D.3 and the case of prosecution it is the injured Anand who himself stopped the accused, assaulted him with stone, kicked him and pushed in a bush. But PW.2 denies giving such 20 statement, but Investigating Officer admits it. So, the evidence of PW.2 is highly interested evidence and it has to be carefully scrutinized by evidence of other witnesses.
18. PW.3 Vijaykumar and PW.4 Arogyappa both of them have also stated that, in the year 2007 in the month of October at about 8.00 p.m., when themselves and Anand were returning after attending nature call near the land of one Hussainsab, at that time accused came infront of them, then they asked him as to why he has written a letter in the name of Arogyappa to the sister of Vijaykumar and they told Anand to enquire in this regard. When they enquired the accused abused them in a filthy language and when Anand told him not talk like this, the accused assaulted with the knife /M.O.1 on left rib of Anand and accused also tried to assault him over neck, Anand tried to escape but he sustained injuries on his right ear, then they took the 21 injured to the hospital Antonappa and Netiraj also came there.
19. PW.3 Vijaykumar has admitted the fact that, he is the grand son of PW.1 complainant. He has also stated that, one Srikanth has told him that, the accused has written a love letter in the name of Arogyappa to his sister. He has not seen that letter. Arogyappa is also his relative. He has given a new version by stating that, about 4.30 p.m., to 6.00 p.m., on the same day when they were playing cricket near church, at that time accused had also came to play cricket and quarrel took place between accused and Anand in respect of financial matter for the work carried out at Surpur. The accused asked Anand to give coolie amount and thereafter words this incident had taken place. He has clearly admitted that, when they were returning accused was simply going. This injured Anand stopped him and talked about the love letter. He has 22 denied the suggestion that Anand assaulted the accused with stone. He has further stated that, the quarrel took place because Anand has not given coolie amount in respect of this accused at Surpur. He has stated that, he has not given statement before the police as per Ex.D.5 stating that, Anand also assaulted accused. He has admitted that, accused has also lodged complaint against Anand and Arogyappa. He has also admitted that, Anthoni and Nethiraj are relatives of Anand.
20. PW.4 Arogyappa has also admitted in his cross-examination that, he is grand son of the complainant. He has also stated that, he has not seen any love letter written by the accused to the sister of Vijaykumar in his name. He has never loved the sister of Vijaykumar. He do not know whether there was any enmity between Anand and accused. He has stated that, when they were returning after attending nature call the accused was coming from opposite side, but he 23 was not carrying any vessel. He has stated that, first injured Anand himself stopped the accused and asked him as to why he has written love letter to the sister of Vijaykumar in his name. Vijaykumar sister was already married. About 20 minutes the quarrel took place, at that time nobody came there. Then after the incident all of them came to the village and accused came to church. He has stated that, he has not given statements before the police as per Ex.D.6 & Ex.D.7. He has admitted that, in respect of the same incident, the accused has given complaint against himself and Anand. He has not seen how the knife came in the hand of accused. He do not know to which part of the ear this injured has stained injury. They did not call for any help, there was no injury to the accused. The accused also came along with them towards their village. Netiraj and Anthoni brought Anand and they stayed near Church for five minutes, then they went on the bike to the hospital. He has admitted that, both of 24 them belong to different political parties. This is all his evidence. His evidence is also contrary and inconsistent with the evidence of the prosecution witnesses and it does not indicate that it is the accused who started the quarrel with them. It indicates that, it is Anand who himself stopped the accused and started enquiring with him. So both PWs 3 & 4 being the close relative, their evidence is that of interested witnesses in view of enmity between injured and accused.
21. PW.5 Dr.Anand M.K., is the Medical Officer who examined this injured on 26-10-2007 at 8.20 p.m. He has stated that, when he was working as Senior Medical Officer at Hutti gold mines company hospital, he examined this injured Anand and found following injuries:
1) Stab injury seen over the left lumbar region with exploration of omentum.
2) Right ear was injured and part of the right lobe was missing.25
So, after preliminary treatment to the patient he was referred to Opek hospital for higher treatment. He has issued certificate as per Ex.P.2 and stated that, injuries were grievous in nature, it could be caused by M.O.1 Knife. He has given his opinion as per Ex.P.3.
22. In the cross-examination PW.5 Doctor has admitted that, he has not written age of the wound. He has stated that omentum is the part of intestine. He has clearly admitted that, mere injury of omentum will not cause death. He has not mentioned the measurement of the stab injury. He has stated that, injury No.1 could be caused due to fall on the sharp object. He do not know any treatment at Opek hospital. He has not stated even the margins of stab injury. He has admitted that, M.O.1 one end is sharp and another end is blunt. If a person is stabbed with M.O.1 the result and injuries should be wedge shape, but he has not stated injury No.1 as wedge shape. He has stated 26 that, small portion of right ear lobe was missing and that missing part was not shown to him. He has also stated that, injury No.2 could not be caused with M.O.1. He has also stated that, age of the injury is not mentioned. He has stated that, he do not know whether M.O.1 was sent under seal or not. The police have brought the knife and it was shown to him. He has clearly admitted that, injuries Nos.1 & 2 will not cause any death. He has not mentioned even the age of injuries. So, the evidence of Doctor makes the very theory of assault doubtful, because according to the Doctor this stab injury if caused with M.O.1 it should be wedge shape, but he has not stated injury No.1 is wedge shape, so there is no wedge shape of injury. He stated that injury No.2 could not caused with M.O.1, then how these injuries are caused is not forth-coming. Therefore, the evidence of Doctor is inconsistent with the theory of assault stated by the injured. 27
23. PW.6 Hanumanth is panch witness. His evidence is not helpful to the prosecution case. He has stated that, he has not seen the accused, but he has stated that, about 2 ½ years back the accused has taken them and shown the knife on a road, which is contrary to the recovery panchnama.
24. In the cross-examination he has stated that, he has acted as pancha in number of cases for the said Hatti police station. So, it appears he is stock pancha of that police station. He do not know the name of the accused and his father and only for the first time he is seeing the accused in the Court. He do not know what is written in the panchnama. He cannot identify what is written in the panchnama and identify his signature. So his evidence creates doubt about the recovery of M.O.1/knife at the instance of accused.
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25. PW.7 Mahadevappa is A.S.I. He has stated that, father of the injured gave complaint as per Ex.P.1, but PW.1 states that, his son Chinnappa who wrote complaint/Ex.P.1. So this again creates doubt in the mind of the Court in view of oral evidence given by PW.1. On the other hand, PW.7 admits that, he arrested the accused on the next day when the accused had come to give a complaint. He has admitted that, the said complaint was received by another A.S.I Chandrashekar and registered in Crime No.193/2007 and complaint of this case is registered in Crime No.192/2007 against the accused. He has stated that, he has not received any certificate from the Doctor to the effect that, the injured Anand was not in a position to give statement. He has admitted that, the charge sheet is filed on the basis of the complaint lodged by accused against injured. So, his evidence creates a doubt about the investigation done by him. 29
26. PW.8 Dattataraya is the P.S.I, who has recorded the statement of PW.2 Anand in the hospital and collected wound certificate and after completion of investigation filed charge sheet against the accused. He has stated that, the injured was taking treatment as in- patient, so there was a delay in recording his statement. But no records were produced in this regard as to how many days the injured had taken treatment as in- patient. He has admitted that, he has not taken any statement from the Doctor to the effect that, the injured was not in a position to give any statement. He has not seized any cloths of the injured, even he has not sent M.O.1 knife to Forensic Science Laboratory for examination and expert opinion about the blood on knife and blood if any on cloths or mud in the scene of offence place. He has also admitted that, there is also counter case filed by the accused, but he do not know who has investigated it. Even he do not know what is the counter case, he do not know whether same is 30 pending before Sessions Court. He has denied the suggestion that, Anand and Arogyappa assaulted the accused and also filed a false case against him. He has denied that he has created M.O.1. So his evidence clearly indicates that, he do not know about any case filed by the accused, then how he investigated the case is not forth-coming. He do not know anything about the case filed by the accused. It is his duty to enquire in this regard. Ex.P.2 is the wound certificate and Ex.P.3 is the opinion certificate issued by the Doctor which are contrary to his own oral evidence. The FIR was registered in this case against ten persons and as per Ex.P.7 seizure panchnama the knife was seized from the road side, it was blood stained and it was nearly about one feet long having 5 inchs handle, so how this Doctor in his report as per Ex.P.3 has not at all mentioned the measurement of the knife. He has not mentioned in Ex.P.3 that, whether any knife i.e. M.O.1 was produced before him. Ex.P.3 does not indicate that the said 31 M.O.1 was shown to this Doctor. Even Doctor also says that, he do not remember whether M.O.1 was sent under seal or not. So it is doubtful about the injury caused to this injured by M.O.1. Even no blood stained cloths were seized. The statements of this injured as per Ex.D2 & Ex.D3 clearly indicates that, he himself stopped the accused while he was going to attend nature call by taking a vessel usually carrying for attending nature call in the villages. So, when injured Anand enquired about the love letter, accused started quarrelling with him. Ex.D.3 indicates that, this injured himself took a stone and assaulted on the right eye of the accused and also kicked him with his legs, then the accused asked him why he is assaulting, by stating so he took a knife and stabbed Anand and he sustained injuries, Vijaykumar and Arogyappa rescued him otherwise accused could have murdered him. Even he has stated that, he has thrown away the blood stained cloths in the hospital, which is again contrary to the 32 prosecution case. So the evidence of Vijaykumar and Arogyappa whose statements were marked as Ex.D.4, Ex.D.5 and Ex.D.6 also indicates that, it is the Anand he himself assaulted and abused the accused, then this accused fell in a bush, so definitely the accused must have sustained some injury. Even PW.2 Anand has also stated that, he has not given statements before the police as per Ex.D.1, Ex.D.2 & Ex.D.3. But Investigating Officer PW.8 has stated that, PW.2 has given statement before him as per Ex.D.1, Ex.D.2 & Ex.D.3. So, this material contradiction creates doubt about investigation done by this PW.8, thereby makes prosecution case doubtful.
27. On entire appreciation evidence of the prosecution witnesses, it is evident that, the entire evidence both oral and documentary are contrary and inconsistent with each other. Ex.P.1 complaint which is lodged at the earliest point of time given by PW.1 Prakash against ten persons is again contains totally 33 inconsistent version. He has stated that, he himself was present and went there and the incident has taken place near a corner of the church when he came out from his house. But here as per the prosecution case, the incident has taken place near the land of one Hussainsab. According to this Ex.P.1 the other accused were threatening to take away his life and the present accused Srikanth and one Nagareddy have taken a knife and assaulted his son on left side ear and even when he went to rescue he his son, he was threatened by them stating that his entire family will be eliminated. He has stated that, one Mr.Augustine and Arogyappa who were his relatives took injured to hospital, so he has given a written complaint. But the entire prosecution theory is totally different. No charge sheet is filed against any of the other accused mentioned in FIR. On the other hand, the case made out is totally different. It is the allegation first made against this accused by Anand stating that, some love letter was written by accused to 34 sister of Vijaykumar. But there was nothing about any love letter written by this accused in the name of Asha who is sister of Vijaykumar, so this Ex.P.1 being at the earliest point of time is totally inconsistent and contrary to the case made out by the prosecution.
28. Absolutely there is no evidence to show that this injured was admitted in the Opek hospital. What was the treatment given to him, how many days he stayed there, why his statement is not recorded immediately by the Investigation Officer, absolutely there is no evidence to show that he was not in a position to give any statement. So Ex.P.1 which has set the criminal law into motion and the F.I.R which was issued on the basis of Ex.P.1 is completely contrary and inconsistent with the charge sheet filed in this case. Some motive is created subsequently to implicate the accused in this case. On the other hand, admittedly there was quarrel that took place between the accused 35 and this injured prior to this incident and the accused has lodged a complaint and the charge sheet was also filed. What happened to that case, what is the nature of that case, whether it is a counter case, if that is the counter case, why it is not tried by the same court and why the Judgment was not pronounced one after other and on what basis the Court has come to the conclusion that, the accused is the aggressor. No medical evidence is produced to show the exact treatment taken by the injured. On the other hand, it is evident from Ex.D.1 to Ex.D.7 that, in the quarrel, it is the injured Anand who himself first assaulted the accused with stone and kicked him and accused fell in a bush. It is suggested to PW.2-Anand that, during scuffle he fell down and a sharp edge of the stone touched to his left abdomen and he sustained injury. The Doctor has also admitted in the cross-examination that, M.O.1 one end is sharp and other one is blunt and if a person is stabbed with M.O.1 there will be a wedge shape injury, but he has not 36 stated that injury No.1 is wedge shape. He has also stated that, injury No.2 could not be caused with M.O.1. He has also admitted that, he has not mentioned the age of injury, even he has stated that these injuries will not cause death and injury No.1 could be caused even if a person fall on the sharp object. He has also not mentioned the measurement of the stab injury. So the medical evidence coupled with the statement marked as 'Ex.D' series if considered, the possibility of this injured falling on a sharp object during quarrel and sustaining injury cannot be ruled out. The Doctor has clearly stated that, the injury No.2 cannot be caused by M.O.1. So the theory of assault becomes doubtful. There is long delay in recording the statement of this injured PW.2 i.e., on 06-11-2007. Absolutely no materials are placed to show why his statement was not recorded. The spot panchnama Ex.P.5 and seizure panchnama Ex.P.7 are stated to be drawn on 26-10-2007 and 27-10-2007 and the Investigating Officer states that, he has recorded the 37 statement of injured Anand on 06-11-2007. The recording of statements of Vijaykumar and Arogyappa as per Ex.D5 to Ex.D.7 on 27-10-2007 itself creates doubt. So mentioning of ten accused in FIR and registering case against all of them and stating assault by two persons then filing charge sheet against only this accused, all these consequences clearly creates a doubt about the investigation done by this Investigating Officer. In fact the injured and the eyewitnesses in this case are all close relatives. Medical evidence indicates the possibility of causing injury No.2 is not possible with M.O.1 knife, there is possibility of injury No.1 being caused by falling on a sharp object like stone in the quarrel. As admittedly according to the prosecution case the accused was returning after attending nature call, it is the injured who stopped him and enquired him about the love letter which has no basis at all. There is no such love letter and none of the witnesses have seen that love letter. So simply some motive is shown which 38 has no basis at all. In fact the injured has to give some amount in respect of coolie work carried at Surpur to this accused and there was quarrel in respect of this amount prior to this incident. As the injured has assaulted the accused, he has lodged a complaint. The prosecution case is also that, the injured and witnesses were also returning from nature call, there they stopped the accused and started enquiring him. In fact the injured PW.2 assaulted the accused with a stone and kicked him and this accused fell down in a bush, but they have denied before the court giving such statement as per 'D' series which is admitted by the Investigating Officer. There is possibility of this injured falling on the ground in the said scuffle or coming into contact with the sharp object or stone and sustained that injury also cannot be ruled out. So in the absence of clear medical evidence or records about the treatment taken by injured in this regard, as the oral evidence is inconsistent with the medical evidence, it is not safe to 39 rely on the uncorroborated doubtful evidence of these witnesses who are all relatives. There is also darkness. Why the accused carried knife, when he has gone to attend nature call is also not forth coming. It is improbable also. Viewed from any angle if the evidence of prosecution is considered then it is evident that, it is full of contradictions and inconsistency about the material particulars. Admittedly there is a quarrel and enmity between accused and PW.2 injured about financial matters. Earlier also there was quarrel between them. On the day of incident as per evidence placed before court there was quarrel between accused and PW.2 and accused was assaulted and he has also given complaint. Complainant, injured and other two witnesses are all close relatives having ill will and enmity towards accused. The ill-will and enmity is like a double edged weapon, it cuts either way. But it is settled principle of law that, the prosecution has to prove its case beyond all reasonable doubt as alleged. 40 There is lot of difference between may be true and must be true. Here in this case there is total suppression of case filed by the accused and the evidence of Investigating Officer clearly creates a doubt about the investigation done by him thereby makes the prosecution case doubtful. The very F.I.R and Ex.P.1 which is lodged at the earliest point of time which is totally inconsistent and contrary to the charge sheet filed against the accused and the evidence produced before the court. Therefore, the accused never had any intention either to cause injury or much less to cause injury, which is likely to cause, death to this injured and the very theory of seizure of M.O.1 is not proved. It was not sent for FSL for examination to ascertain whether there is blood on it, no cloths were seized. The statement of injured itself was recorded on 06-11-2007 which is fatal to the prosecution case in the absence of any explanation and evidence. There is no legally admissible evidence produced in this case to believe the 41 assault and causing injury by accused to PW.2. The evidence of prosecution witnesses is full of doubtful circumstance, which creates doubt in the mind of the court. It is settled principle of law that, benefit of doubt should go to the accused.
29. I have perused the Judgment of trial court. The learned Sessions Judge has not appreciated the evidence of these witnesses and not discussed the contradictions and material inconsistencies. The reason given by the learned Sessions Judge at paragraph No.8 regarding lodging of Ex.P.1 is opposed the principles regarding appreciation of evidence. Though he has come to the conclusion that, PW.1 is not a eyewitness, he has not chosen to disbelieve Ex.P.1. PW.s 2, 3 & 4 are all relatives and interested witnesses having enmity and ill- will towards this accused. If they have gone to attend nature call when the accused has also gone to attend nature call, why he carries M.O.1 knife is not forth- 42 coming. The reasons given by the learned Sessions Judge putting blame on the accused is not in accordance with the settled principles regarding appreciation of evidence when the Doctor has stated that the injury No.2 cannot be caused by M.O.1. So how he believed such evidence is not forth coming. The accused has never taken the theory of self defense but it is made out by the learned Sessions Judge. The learned Sessions Judge has mentioned at paragraph No.10 of the Judgment that there is S.C. No.165/2008 filed by the accused against witnesses in this case, but why that case was not tried by him and Judgment was not delivered one after another. When no evidence of that counter case is marked in this case, how he came to the conclusion that the accused is aggressor without there being evidence of other case produced in this case in accordance with law. On the other hand, the very case of the prosecution is that, it is the injured Anand and others themselves stopped the accused while he was 43 going for nature call and injured himself assaulted with a stone and kicked the accused he fell in a bush as per statement 'Ex.D' series marked in this case, so question of this accused being aggressor does not arise at all. The very assault by M.O.1 itself is doubtful. So how M.O.1 came there is not forth-coming and the reasoning given by the learned Sessions Judge in this case are totally wrong. The learned Sessions Judge has mis-directed himself simply because some injury is caused. The witnesses are highly interested. Simply because some person has sustained injury that itself is not a ground to believe what-ever is their evidence. The witnesses are having ill-will and enmity with this accused. Their evidence is to be carefully scrutinized with other evidence. So the entire circumstances and the evidence both oral and medical evidence falsify the theory of assault. The contradictions, inconsistency and omissions have totally affected the veracity of the prosecution case and has made the prosecution case 44 full of doubt. The learned Sessions Judge though referred to the decisions of Hon'ble Supreme Court and High Court of Karnataka, but has wrongly casted burden on the accused and he has stated that the accused has not given any explanation. Why the accused should give explanation is not forthcoming. This is not a case and counter case tried by him and Judgment delivered one after another. The learned Sessions Judge has totally mis-directed himself which has resulted in mis-carriage of justice. Hence the said Judgment needs to be interfered by this Court.
30. It is settled principle of law that, prosecution has to prove its case as alleged beyond all reasonable doubt. There is lot of difference between must be true and may be true. If the evidence of prosecution creates a reasonable doubt in the mind of the court then that benefit of doubt should go to the accused. In view of settled principles regarding appreciation of evidence if 45 the evidence of prosecution witnesses is considered, then in my considered view the prosecution has failed to prove that accused has any intention to cause injury to PW.2 much less the injury to cause death. Therefore, in view of inconsistent oral and medical evidence and inherent improbabilities in the complaint Ex.P.1 which is filed at the earliest point of time. Failure to prove any motive coupled with ill-will towards the accused, I hold that, the prosecution has not been able to clear the clouds of uncertainty that hangs over its narration. Therefore, accused is entitled for benefit of doubt. Hence the Judgment of conviction passed by the learned Sessions Judge, needs interference by this court and is liable to be set aside and accused to be acquitted. Therefore, I answer Point No.1 in the Negative and Point No.2 in the affirmative. Accordingly I pass the following:
ORDER Appeal is allowed.46
The Judgment of conviction and sentence passed by Prl. Sessions Judge Raichur in SC. No.66/2008 dated: 17-12-2012 is hereby set aside. The accused by name Srikanth S/o Rayapa Salaboor is acquitted of the offence punishable under section 307 of Indian Penal Code.
The bail bond of the accused and the bond executed by the surety, if any, is hereby cancelled. If the fine amount is already deposited, the same is ordered to be refunded to the accused /appellant. Send back the records of the trial court forthwith.
Sd/-
JUDGE MNS.