Karnataka High Court
Pushparaj vs State Of Karnataka on 16 January, 2021
Bench: B.Veerappa, M.Nagaprasanna
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2021
PRESENT
THE HON' BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL APPEAL No.595/2018
BETWEEN:
PUSHPARAJ,
S/O SHANTHARAJU,
AGED ABOUT 46 YEARS,
R/AT NO. 116,
KAMMANAHALLI, THOMAS TOWN,
BANGALORE CITY.
(NOW IN JUDICIAL CUSTODY,
CENTRAL PRISON, BANGALORE)
...APPELLANT
(BY SRI T. PRAKASH, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY THALAGHATTAPURA POLICE STATION,
BANGALORE DISTRICT.
2. THIMMAIAH,
S/O. LATE VENKATEGOWDA,
AGED ABOUT 70 YEARS,
AGRICULTURIST,
2
3. HOMBALAIAH,
S/O. LATE VENKATEGOWDA,
AGED ABOUT 69 YEARS,
4. DODDAVENKATAPPA
S/O. LATE VENKATEGOWDA,
AGED ABOUT 68 YEARS,
5. SHANTHAPPA,
S/O. LATE CHINNAPPA,
AGED ABOUT 90 YEARS,
RETD,. TEACHER,
V/O DATED 02.06.2020 APPEAL
IS ABATED AGAINST R-5
6. S. M. NAGARAJ
S/O. MUNIYAPPA,
AGED ABOUT 50 YEARS,
7. S.M. VEERACHANNAPPA
S/O. MUNIYAPPA,
AGED ABOUT 46 YEARS,
8. VIJAYAKUMAR,
S/O. CHIKKAGUDDAIAH,
AGED ABOUT 46 YEARS,
9. CHANDRASHEKAR
S/O. HOMBALAIAH,
AGED ABOUT 47 YEARS,
RESPONDENT Nos.2 TO 9 ARE
RESIDENTS OF SOMANAHALLI VILLAGE,
UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK.
....RESPONDENTS
(BY SRI S. SHANKARAPPA, ADVOCATE FOR R.2-4 & R.6-9;
SRI V.M. SHEELVANT, SPP-I ALONG WITH SRI VIJAYKUMAR
MAJAGE, ADDITIONAL STATE PUBLIC PROSECUTOR FOR R1;
3
APPEAL ABATED AGAINST R5 VIDE ORDER DATED 02.06.2020)
****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL PASSED IN S.C
No.76/2004 DATED 29.11.2017 ON THE FILE OF THE VII
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL
DISTRICT, BENGALURU AND CONSEQUENTLY, RECORD THE GUILT
OF RESPONDENTS 2 TO 9 AND PASS APPROPRIATE SENTENCE IN
ACCORDANCE WITH LAW, IN THE ENDS OF JUSTICE.
THIS CRIMINAL APPEAL HAVING BEEN HEARD THROUGH
PHYSICAL HEARING AND RESERVED FOR JUDGMENT, COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, B.VEERAPPA, J,
DELIVERED THE FOLLOWING:
JUDGMENT
The present Criminal Appeal is filed by the complainant- Pushparaj, against the judgment and order of acquittal dated 29.11.2017 made in S.C.No.76/2004 acquitting the accused persons for the offences punishable under Sections 143, 147, 148, 324, 307 r/w 149 of the Indian Penal Code.
2. It is the case of the prosecution that, the appellant/ complainant's father-Shantharaju, aged about 75 years had owned land bearing Sy.No.45 measuring 2 acres situated at Somanahalli, Uttarahalli Hobli, within the limits of Thalaghattapura Police Station, 4 Bengaluru. He had grown fruit bearing plants and maintained it as garden surrounded with fence and gate and in the said land, there was BESCOM electric transformer supplying electricity power to in and around area. The accused No.3-Narayana (deceased) and the respondent Nos.2, 3 and 4 i.e., accused Nos.1, 2 and 4, being brothers and residents of Somanahalli, had a large extent of agricultural land and they also had sugarcane jaggery making unit (Aalemane) for which electricity was being supplied from the transformer fixed in the land of the appellant/complainant's father. The accused No.3- Narayana and his servant used to frequently enter into the land of the appellant's father for fixing the fuse in the transformer without informing BESCOM authorities and without obtaining prior permission. While doing so, they used to trespass into the land of the appellant's father and keep open the gate fixed to the garden land, thereby making way for animals to enter the garden and damage the plants grown by the appellant's father. The appellant's father Shantharaju advised accused No.3 not to do so, but Narayana continued to be adamant in his behaviour. On 09.05.1998, at about 6.30 or 7.00 pm, Shantharaju's son by name Francis Kumar and his son-in-law D.Francis, had been to the said 5 garden land. At that juncture, while returning, near Joseph farm, the accused No.3 Narayana, accused No.1-Thimmaiah, accused No.4-Doddavenkatappa, their servant Naga @ Nagaraj picked up a quarrel and assaulted them. When Francis Kumar and D.Francis escaped and took shelter in the house of Mariswamy, there also, accused Nos.1 to 4, and said servant Naga @ Nagaraj forcibly ingressed into the house of Mariswamy and caused multiple injuries to Francis Kumar and D. Francis. Accordingly, accused No.3 Narayana lodged an FIR which was registered in Crime No.77/1998 for the offences punishable under Section 307 r/w 34 of the Indian Penal Code against the complainant and others and Shantharaju's son-in-law D. Francis also lodged a complaint which was registered in Crime No.78/1998 for the offences punishable under Sections 324 and 307 r/w 34 of the Indian Penal Code against the accused.
3. It is further alleged that on the same day i.e, on 09.05.1998 at 10.30 pm, when the complainant-P.W.1-Pushparaj, P.W.2- Sundarraj and P.W.3-David while returning to their house at Somanahalli after attending a marriage reception function at Thataguppe village, they had to pass through the house of 6 respondent No.2/accused No.1-Thimmaiah, the appellant was way- laid in front of the house of respondent No.2 and respondent Nos.2 to 9 who were armed with choppers, clubs and iron rods assaulted the complainant, with an intention to commit his murder as he is the son of Shantharaju. When P.W.2 Sundarraj and P.W.3-David intervened to save the appellant, they were also assaulted with choppers and clubs and caused multiple injuries. The appellant lodged FIR before the Thalaghattapura Police Station which came to be registered in Crime No.80/1998 for the offences punishable under Sections 143, 147, 324, 307 r/w 149 of the Indian Penal Code. It is further stated that, in respect of the same incident, the respondent No.2/accused No.1-Thimmaiah also lodged a complaint stating that the appellant/complainant and others trespassed into his house, assaulted respondent Nos.2 to 4 and other family members and caused injuries, mishandled the articles kept in the house, which came to be registered as Crime No.79/1998 for the offences punishable under Sections 143, 147, 148, 448, 427, 324, 307, 341 r/w 149 of the Indian Penal Code.
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4. After investigation, the jurisdictional Investigating Officer filed 'B' report in Crime No.80/1998. The same was challenged by the complainant by filing a complaint/protest petition as per Ex.P.2 before the Chief Judicial Magistrate, Bengaluru Rural District, Bengaluru, which was later registered as S.C.No.76/2004. The learned Sessions framed the Charge, read over to the accused persons, who pleaded not guilty and claimed to be tried. It is also relevant to state at this stage that in Crime No.79/1998, the Investigating Officer filed Charge Sheet which culminated in S.C.No.231/1998 on the file of the VII Additional District and Sessions Judge, Bengaluru Rural District Bengaluru, where a conviction order has been passed against the accused persons.
5. In order to prove its case, the prosecution examined P.Ws.1 to 7 and marked the documents Exs.P.1 to 15 and the material document M.O.1 (four clubs). On behalf of the accused, evidence of P.W.1 was marked as Ex.D.1 and selected portions of Ex.P.1 was marked as Ex.D.2 and D.3. After completion of evidence of prosecution witnesses, the statement of the accused as contemplated under Section 313 of the Code of Criminal Procedure 8 was recorded. The accused persons denied all the incriminating evidences adduced against them and did not examine any defence witness, except producing Exs.D.1 to D.3.
6. Based on the aforesaid material on record, the learned Sessions Judge formulated five points for consideration. Considering the oral and documentary evidence on record, the learned Sessions Judge recorded a finding that, the prosecution failed to prove beyond reasonable doubt that on 09.05.1998 at 10.30 pm, in Somanahalli, the accused persons and the deceased Narayana formed an unlawful assembly in order to assault Pushparaj and others and thereby committed an offence punishable under Section 143 r/w 149 of the Indian Penal Code; prosecution failed to prove that on the said date and time, the accused persons formed an unlawful assembly with an intention to disturb the public peace and thereby committed an offence punishable under Section 147 r/w 149 of the Indian Penal Code; prosecution failed to prove that on the said date and time, the accused persons being members of the unlawful assembly, with an intention to disturb the public peace armed themselves with deadly weapons like clubs, choppers 9 and iron rods and thereby committed an offence punishable under Section 148 r/w 149 of the Indian Penal Code; the prosecution failed to prove that on the said date and time, the accused persons being the members of unlawful assembly armed with deadly weapons like clubs, choppers and iron rods, assaulted Pushparaju, Sundarraj and David and committed an offence punishable under Section 324 r/w 149 of the Indian Penal Code; and further, the prosecution failed to prove that on the said date and time, the accused persons being the members of unlawful assembly armed with deadly weapons like clubs, choppers and iron rods, assaulted Pushparaju on his head and other parts of the body, with the knowledge that it may cause his death, caused hurt and thereby, committed an offence punishable under Section 307 r/w 149 of the Indian Penal Code. Accordingly, the learned Sessions Judge, by the impugned judgment and order, acquitted the accused persons for the offences punishable under Sections 143, 147, 148, 324, 307 r/w 149 of the Indian Penal Code. Hence, the present Criminal Appeal is filed by the complainant.
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7. The State has not filed any Appeal against the impugned judgment and order of acquittal passed by the learned Sessions Judge.
8. We have heard the learned counsel for the parties.
9. Sri T.Prakash, learned counsel for the appellant/complainant contended with vehemence that the impugned judgment and order of acquittal passed by the Trial Court acquitting the accused persons for the offences made out in the Charge is erroneous and contrary to the material on record and is liable to be set aside.
10. Learned counsel contended that the learned Sessions Judge committed a serious error in taking note of the minor discrepancies while passing impugned judgment and order of acquittal. He further contended that as per Ex.P.1-complaint, the complainant and others met near the house of accused No.1 for enquiry, the accused persons assaulted them. The injuries sustained by P.Ws.1 to 3 are supported by medical evidence of the Doctor-P.W.7 and Exs.P.3 to 14. The same has not been considered by the learned Sessions Judge. The complainant-P.W.1, P.Ws.2 and 3 were in 11 Victoria Hospital from 09.05.1998 to 12.05.1998. P.Ws.1 to 3 supported the case of the prosecution. The wound certificate- Ex.P.7 dated 11.05.2000 clearly depicts that the prosecution proved beyond reasonable doubt that the appellant-P.W.1 had sustained multiple serious injuries on his head and all over the body and multiple fractures. It was supported by the evidence of Doctor- P.W.7 and medical records. The same has not been considered by the learned Sessions Judge. The commission of offence was brought to the notice of Thalaghattapura Police Station and law was set into motion in Crime No.80/1998 in which, it was described that respondent Nos.2 to 9, forming an unlawful assembly, armed with deadly weapons like chopper, clubs, rods and chains, caused multiple injuries to P.W.1 and upon registration of FIR, the police themselves took P.Ws.1 to 3 to Victoria Hospital and admitted them at about 1.25 am on 10.05.1998 and they were examined with the history of assault by accused Nos.2 to 4. Subsequently, the complainants were referred to NIMHANS Hospital and thereafter, to Hosmat Hospital. The fractures sustained by the accused and others including P.W.2 is stated by P.W.7-Doctor as per Ex.P.4, 7, 11 and 12 maintained in the Hospital has not been considered. On 12 that ground alone, the impugned judgment and order of acquittal is liable to be set-aside. Learned Counsel for the appellant further contended that the case of the appellant is treated as counter case. Case is said to have been lodged by accused No.1/respondent No.2- Thimmaiah in Crime No.79/1998 which is tried in S.C.No.231/1998 in which case also presence of respondent Nos.2 to 9 has been proved beyond reasonable doubt by virtue of their own FIR No.79/1998 that they have also sustained injuries in the same incident. The said material aspect has not been considered. Therefore, he contended that there are more serious infirmities in the impugned judgment and order of acquittal. Therefore, he sought to allow the Criminal Appeal.
11. Per contra, Sri S.Shankarappa, learned counsel for respondent Nos.2 to 4 and 6 to 9 sought to justify the impugned judgment and order of acquittal and contended that the Head Constable 501 who recorded Ex.P.1-complaint at about 12.50 pm on 09.05.1998 has not been examined. P.W.1 in his cross- examination has admitted that he has signed the complaint against 'x' mark and in paragraphs 14 and 15 of the cross examination 13 admitted that he does not know what has written in Ex.P.1- complaint. He does not know the contents of Ex.P.2-PCR and not examined the author of Ex.P.2. The evidence of P.Ws.1, 2 and 3 are contrary to each other. Therefore, the evidence of the prosecution witnesses cannot be relied upon, as rightly held by the learned Sessions Judge. Learned counsel further contended that the spot mahazar was conducted in the house of accused No.1 between 1.15 pm to 2.15 pm. There is no whisper in the complaint about the destroying of television and radio. P.W.1 also has not stated anything in his evidence. There are material omissions. Therefore, the learned Sessions Judge is justified in acquitting all the accused persons. The doctors of Victoria Hospital, Raj Nursing Home and NIMHANS, have not been examined. The doctor who issued the postmortem report is also not examined. The doctor who issued the accident register is not examined. P.W.2 in his cross examination has admitted that on 09.05.1998, he did not go from Thataguppe to Somanahalli in bus and he did not alight in the bus stand along with Pushparaju and David. Ex.D.1 pertaining to P.W.1 depicts pain in the right ankle, so also, Exs.P.3 and 4 and contrary is mentioned in Ex.P.7 and 8. Admittedly, the Doctors are not examined. 14 Therefore, the learned Sessions Judge is justified in acquitting the accused. The impugned judgment and order of acquittal passed by the learned Sessions Judge, considering both oral and documentary evidence is in proper perspective and the same is in accordance with law. Learned counsel further contended that powers of this Court is very limited in the Appeal filed by the complainant under Section 372 of the Code of Criminal Procedure, against the Order of acquittal. Therefore, he sought to dismiss the Criminal Appeal.
12. Sri Vijayakumar Majage, learned Additional State Public Prosecutor sought to justify the impugned judgment and order of acquittal passed by the Trial Court and contended that absolutely there is no ground made out by the complainant to show any error or perversity committed by the learned Sessions Judge, while acquitting the accused persons for the offences made out in the Charge. Therefore, he sought to dismiss the Criminal Appeal.
13. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for our consideration in the present Criminal Appeal is:
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"Whether the complainant has made out any case to interfere with the impugned judgment and order of acquittal passed by the learned Sessions Judge acquitting the accused persons for the offences punishable under Sections 143, 147, 148, 324, 307 r/w 149 of the Indian Penal Code?"
14. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record, including the original records, carefully.
15. Being the Appellate Court, in order to reappreciate the case, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon.
(i) P.W.1-Pushparaj, who is the complainant-injured has sustained injuries on his head and all over the body, reiterated the averments made in the complaint and produced Exs.P.3 to 8/medical records pertaining to him and supported the prosecution case.
(ii) P.W.2-Sundarraj, who is also injured in the incident has identified M.O.1 (four in number) which was 16 used to assault. He deposed that they were going in front of the house of the accused No.1. All the accused persons assaulted Pushparaju with iron rods and clubs. When he and David interfered, they were also assaulted with iron rods and clubs and they were taken to Victoria Hospital and NIMHANS hospital. Subsequently, they were taken to Hosmat Hospital. In his evidence, Ex.P.12-wound certificate, Ex.P.13 and Ex.P.14-accident registers were marked.
The witness supported the prosecution case.
(iii) P.W.3-David, injured has deposed that when they were walking infront of the house of accused No.1. Accused Nos.1, 2, 4, 7, 8 and others assaulted Pushparaj with iron rod and chopper on his shoulder. When himself and P.W.2 tried to interfere, they were also assaulted. The police came, shifted the complainant and injured to Victoria Hospital. He identified the accused No.1-Thimmaiah and accused No.4-Doddavenkatappa and supported the prosecution case.
(iv) P.W.4-Chowrappa, eye witness to the incident, partly supported the prosecution case.
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(v) P.W.5-Rajanna, partially supported the prosecution case.
(vi) P.W.6-Joseph-not supported the prosecution case and turned hostile.
(vii) P.W.7-Dr.Ajith Bennadik Rayan, who treated the complainant/appellant deposed about the inpatient and outpatient record i.e., Exs.P.5 and P.6 and also discharge summary-Ex.P.4. He also deposed that the injuries found on the complainant could be caused by M.Os.1 to 4. He supported the case of the prosecution.
16. Based on the aforesaid material on record, the learned Sessions Judge proceeded to acquit the accused persons for the offences made out in the Charge.
17. This Court being the Appellate Court, in order to re-appreciate the entire evidence on record, it is relevant to consider the gist of the prosecution case. On 09.05.1998, at 10.30 pm at Somanahalli, all the accused persons including deceased Narayana, formed unlawful assembly with an intention to assault P.W.1. Accordingly, they assaulted with deadly weapons on P.Ws.1, 2, 3 and others, on 18 the head and other parts of the body. P.W.1-Pushparaj, in his examination-in-chief stated that he knows the accused persons and on 09.05.1998 at about 10.30 pm, himself, P.Ws.2 and 3, after finishing dinner in their relatives house, came in a bus upto Thataguppe and thereafter, they went in a Matador to Kaggalipura and thereafter, went by bus to Somanahalli. When they got down from the bus and when they had to pass through the house of accused No.1-Thimmaiah, the accused No.1 referring to P.W.1, told other accused persons i.e., accused Nos.2 to 9 that 'he is son of Shantharaju, assault him and kill him'. Accordingly, the accused persons assaulted P.W.1 with chopper on his left shoulder, accused Nos.2 and 4 assaulted with clubs on his head, accused Nos.5 to 9 assaulted him with club and stones on his face, hands and legs. Accordingly, P.W.1 lodged complaint to Thalaghattapura Police Station on 10.05.1998, as per Ex.P.1. In the complaint it is stated that on 09.05.1998, he went to Thataguppe village to attend relatives marriage along with his friends Bala and Ravi. After finishing the dinner, when they came to their native place i.e., Somanahalli to see their land, they came to know that on the same day evening there was quarrel with regard to fixing of electric fuse 19 and therefore, himself, Ravi and others went to the house of Accused No.1-Thimmaiah, to ask as to why he assaulted. Accused Nos.1, 2 and the deceased and others with an intention to murder P.W.1, assaulted him with chopper on his head, hand and left shoulder and the remaining accused persons assaulted with clubs. When P.Ws.2 and 3 intervened, they were also assaulted with clubs and hands. But, when he made statement on 10.05.1998 before the Police, stated that he fell down on the day of the incident and lost conscious and regained conscious only at 10.30 pm. The same is contrary to the averments made in the complaint.
18. In the complaint made before the Magistrate as well as before the Police, he has not stated that he went to the marriage along with his friends Bala and Ravi and he has stated in examination-in- chief that he regained conscious at about 12.30 pm. At that time, he was in Thalaghattapura Police Station who took him to Raj Nursing Home where there were no doctors. Therefore, he was taken to Victoria Hospital and in the hospital, the police recorded his statement and in Victoria hospital. The head injury was stitched and was sent to NIMHANS hospital. After scanning, again he was 20 sent to Victoria Hospital. Thereafter, himself, P.Ws.2 and 3 went to HOSMAT hospital and there rod was fixed to the right hand and he was there upto 23.05.1998. But when he made statement before the police at 00.15 hours, he has stated that he was hurt as he sustained grievous injuries but has not stated that he was unconscious. He further stated that the complainant also lodged the complaint on 10.05.1998 at 00.15 hours in Crime No.80/1998. P.W.1 further stated that on 23.05.1998 as the medical expenses was huge, he went to Joshi Nursing Home, Chamarajapet, and was there for three months. After discharge, he came home and came to know that accused No.1 has given false complaint against him and others. Thereafter, they surrendered before the Police and came to know that complaint filed by them ended in filing of 'B' report by the police and therefore, they engaged an Advocate to reopen the case by filing an application before the Magistrate. He also deposed that the accused, including deceased Narayana assaulted him. When he made private complaint before the learned Magistrate, he has stated that except Narayana, all the accused persons assaulted him. But in the examination-in-chief, he has admitted that he is not aware as to where is Narayana and incident 21 happened at the instance of accused No.1 only. He stated before the Police as per Ex.P.1 that deceased Narayana and others had rift with his brother-in-law-Francis Kumar with regard to fixing of fuse to electric transformer. But he has not stated in examination-in- chief about deceased Narayana or his brother-in-law/Francis Kumar and has not disclosed the quarrel. He further stated in the cross- examination that 3 to 4 days prior to the marriage, the parents of the bride had invited, but in the invitation it is not mentioned as "Beegara Oota" and admitted that he has not produced the invitation card and not shown the place of marriage to the police and further stated in the cross-examination that bride's father is one Urduswamy, but in the evidence he has stated that he was invited on behalf of the bride groom to the marriage. There is inconsistency at every stage. There is improvement in the statement of P.W.1.
19. That apart, P.W.1 has not whispered anything about P.Ws.2 and 3 that they also came with him to Thataguppe and not mentioned in the complaint. He further stated that he is not aware as to what has been written by the police in the complaint. He has 22 deposed that police asked him to sign and accordingly, he signed. He did not know what was written in the complaint.
20. He further admitted that Victoria Hospital authorities have not informed him to go to HOSMAT Hospital. In Victoria Hospital he was treated only for wounds and not for fractures. He further deposed that Ex.P.3-cash register issued by the HOSMAT Hospital, Ex.P.4- discharge summary, Ex.P.5- inpatient and outpatient record, Ex.P.7 is wound certificate issued by Victoria Hospital. But he has not produced any documents with respect to Raja Nursing Home where he took treatment at the first instance as stated in the examination-in-chief. In Ex.P.7 it is stated that on 10.05.1998 at about 1.35 am P.C.No.791 took P.W.1 to the hospital, but what treatment was given is not mentioned. Admittedly, Ex.P.7 is dated 11.05.2000 issued by the hospital. As per Ex.P.3-casuality register of Hosmat Hospital on 09.05.1998 at about 10.00 pm there is an entry that P.W.1 has the history of assault on upper lip and face, but as per the x-ray Ex.P.3 nowhere it is stated that there were fractures. Ex.P.4 is the discharge summary of Hosmat Hospital. On 12.05.1998, complainant was admitted and was discharged on 23 25.05.1998. The date of discharge is altered and not signed by any Medical Officer.
21. As already stated supra P.W.1 has not produced any medical records to show that he joined Raja Nursing Home for the injuries sustained by him and no medical documents are produced. He has also not produced any material document to prove that he was inpatient in Victoria Hospital. He also admitted in the cross- examination that Doctors of Victoria Hospital have not informed him to go to Hosmat Hospital and he has not produced medical certificate to show that he was treated for fractures either at Raja Nursing Home or at Victoria Hospital. The incident occurred on 09.05.1998 and he was in the hospital till 12.05.1998. The complainant has not produced any documents to show as to where he has taken treatment and there is no document to prove when he was admitted and took treatment. He has not produced any document to show that he sustained injuries. If really he was unconscious in view of the grievous injuries sustained in the assault, why he has not mentioned the same in Ex.P.1 is not forthcoming. He has further stated that he lodged complaint from 24 the hospital after he regained conscious at about 1.00 pm on 10.05.1998 and thereafter, he made statement before the Police. The time mentioned clearly depicts that it was early morning 00.15 hours which clearly indicates that P.W.1 is changing his version time and again to his convenience. Further he has admitted in the cross-examination that he has not informed the Doctor of Victoria Hospital about the fracture sustained by him in the assault. If really he was assaulted and sustained fractures, the hospital where he was treated should have noticed those fractures and should have shown the same in the concerned documents. He has not produced any medical records to show that he has taken treatment at Victoria Hospital for grievous injuries sustained by him. It clearly indicates that he has not sustained any injuries as stated by him. Admittedly, he has not examined the Doctors of Victoria Hospital. Therefore, it clearly indicates that he has not sustained fractures or grievous injuries. A careful perusal of the examination-in-chief and cross-examination of P.W.1 clearly indicates that there are improvements and omissions. Therefore, the evidence of P.W.1 cannot be relied upon.
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22. Though P.W.2 has stated that on 09.05.1998 at about 10.30 pm when himself and P.W.1-Pushparaj alighted at Somanahalli bus stand when they passed through the house of the accused No.1, all accused persons holding clubs and choppers identified P.W.1 as son of Shantharaju and assaulted him. When he interfered, he was also assaulted by accused persons on his back with clubs and David- P.W.3 was also assaulted. He has not stated anywhere in the examination-in-chief that P.W.1 was unconscious because of the grievous injuries and fractures sustained by him. P.W.3-David has reiterated on par with P.Ws.1 and 2 and admitted that he did not know who is Narayana and that there was a complaint against P.Ws.1 to 3 that they assaulted and killed Narayana. The same was subject matter of S.C.No.231/1998 and further admitted that he has no relatives at Somanahalli, but he knows P.W.1.
23. By careful reading of the evidence of P.Ws.1 to 3 it is clear that on 09.05.1998 at 10.30 pm they were present and as per the statement of P.Ws.1 to 3 when they were going in front of the house of accused No.1, accused and others assaulted them with chopper and clubs. But as per Ex.P.1-complaint, P.W.1 stated that 26 on the same day evening there was a quarrel. Therefore, in order to verify P.W.1, his brother-in-law Francis Kumar and his brother Ravi went to the house of the accused and asked about the incident and they assaulted. Therefore it is clear that the complainant- P.W.1, P.W.3 themselves went to the house of the accused No.1. Therefore, really if P.Ws.1 to 3 went to Thataguppe for dinner, the intention of the accused to kill P.W.1 would not arise. As they went to the marriage and came back to the village it was not known to the accused persons. P.W.3 admitted that he has no relatives and he has not stated that P.W.1 was unconscious and he gained conscious, and P.Ws.1 to 3 were taken to Victoria Hospital by the police. P.W.3 admitted that he had the habit of taking drinks on the payment day every week. If they have no relatives at Somanahalli, why he went to P.W.1 on the date of the incident along with Pushparaj creates serious doubt.
24. It is also not in dispute that Pushparaj/P.W.1 admitted that there was no marriage invitation. But in the complaint stated that along with him his friends Bala and Ravi were there. If really they went to the marriage alongwith P.Ws.2 and 3 it should have been 27 shown in the complaint. But Ex.P.1 does not reveal that neither himself or P.Ws.2 and 3 went to the marriage. Therefore, the evidence of P.Ws.1 to 3 is contrary to the complaint and there are omissions. Therefore, evidence of P.Ws.1 to 3 about the assault made by accused persons in the absence of any medical evidence on record cannot be relied upon. P.Ws.4 and 5 have turned hostile. P.W.6 is only hear say witness stated that he came to know that there was quarrel between Thimmaiah and P.W.1. P.W.7-Dr.Ajith Benedict Rayan of Hosmat Hospital stated that on 12.05.1998 at about 11.40 am one Fathima Mary brought P.W.1-Pushparaj with history of assault on 09.05.1998 on him. Before they came to the hospital, the injured already obtained treatment from NIMHANS. When he examined he has stated two fractures on right leg fibula, metacarpal bone of the right hand index finger and one tooth of the upper jaw was broken and head injury. He further stated that there is possibility of assault with clubs M.Os.1 to 4. In cross- examination stated that if the patient already taken treatment in some other hospital there must be reference letter and on the basis of the reference letter it should be recorded in the concerned records and also admitted that in Exs.P.5 and 6 in patient and out 28 patient records, assailant's name was not mentioned. But Ex.P.5 depicts that P.W.1 was referred from NIMHANS to Hosmat Hospital and further admitted as per Ex.P.5 the injured upper lip and right hand pain and he admitted the injuries shown is not on vital organ. Therefore, he admitted that the injuries shown in Ex.P.5 may be caused if hit by hard stone. He further stated that P.W.1 had come to hospital about 19 years back. Prior to that, neither himself nor his relatives had never come to the hospital. He stated that a person can be identified after so many years, only if his features are noted down.
25. On meticulous examination of the evidence on record, it is clear from the evidence of P.Ws.1 to 3, 6, 7 and the material documents that there are so many omissions and contradictions in the evidence of prosecution witnesses, that the entire fabric of the prosecution case appears to be ridden with gaping holes. It is true that due to passage of time, witnesses do deviate from their police statements as their memory fades to some extent. Reasonable allowance can be made for such discrepancies. But when such discrepancies make the foundation of the prosecution case shaky, 29 the Court has to take strict note thereof. On thorough reading of the aforesaid evidences of the prosecution witnesses, the discrepancies are located and the witnesses have discredited themselves.
26. It is also not in dispute that the complaint Ex.P.1 was recorded by P.C.501 at 00.15 hours on the date of the incident and the said police constable is not examined. P.W.1 admitted in the cross-examination that he signed against 'x' mark as already stated supra. He admitted that he does not know what was written in the complaint nor the contents and not aware of contents of Ex.P.2- PCR. Except P.W.7-Doctor, the doctors who examined P.Ws.1 to 3 at Victoria Hospital, Joshi hospital, Raj Nursing Home and NIMHANS have not been examined to prove either Ex.P.7 issued by Victoria Hospital and Ex.P.8 accident register issued by the Victoria Hospital.
27. Ex.P.11-wound certificate of Francis Kumar dated 14.05.1998 indicates that the injury sustained is simple in nature and in Ex.P.12 it is shown as injuries sustained are simple in nature. The discharge summary of P.W.1 shows history of assault on 30 09.05.1998 with complaint of pain in right leg, right ankle and right hand only. In the absence of any medical evidence of fracture supported by oral evidence of doctors who treated P.W.1, the case of the prosecution that P.Ws.1 to 3 sustained injuries is doubtful and cannot be accepted.
28. The Trial Court, considering the entire oral and documentary evidence on record, in proper perspective has recorded a finding that the, prosecution failed to prove beyond reasonable doubt that the accused being members of unlawful assembly with common intention, assaulted the complainant with choppers, clubs so as to attract the offence punishable under Sections 143, 147, 148, 324, 307 r/w 149 of the Indian Penal Code. Accordingly, the Trial Court acquitted all the accused persons.
29. Admittedly, the present Criminal Appeal is filed by the complainant against the judgment and order of acquittal. The Hon'ble Supreme Court, in the case of Chandappa vs. State of Karnataka reported in (2007)4 SCC 415, with respect to general 31 principles regarding powers of appellate court in dealing with Appeal against the order of acquittal, has held as under:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language"32
to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(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.
(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.
43. Applying the above principles to the case on hand, we are of the considered view that the learned counsel for the accused is right in submitting that the High Court ought not to have disturbed an order of acquittal recorded by the trial court. For acquitting the accused and extending 33 them the benefit of doubt, the trial court observed that the prosecution had failed to examine certain persons who could have unfolded the genesis of the prosecution case. The trial court indicated that the root cause of the quarrel was refusal to exchange copper vessel (kolaga) to Nagaraj, winner of the draw, but he was not examined. Likewise, Krishnaiah, son of Oblaiah, who accompanied the injured (the deceased) Anjinappa to the hospital, was not brought before the court. Though it is in evidence that Accused 1 Chandrappa was injured and was also taken to the hospital along with Anjinappa, some witnesses had denied the fact as to injuries sustained by Accused 1. The High Court did not give much weight to the said circumstance observing that Accused 1 was neither examined by a doctor nor was a cross-complaint filed by him against the prosecuting party. In our view, the submission of the learned counsel for the appellants is well founded that it is not material whether Accused 1 had or had not filed a complaint or he was or was not examined by a doctor, but the fact that even though it was the case of prosecution that Accused 1 was injured during the course of incident, prosecution witnesses tried to suppress that fact which would throw doubt as to the correctness of the case or the manner in which the incident had happened. The trial court had also stated that it was unnatural that the prosecution witnesses and 34 the deceased Anjinappa could have gone to Hanumanthapura bypass at about 9.30 p.m. when a shorter route was available for going to their destination. The trial court observed that there was inconsistency in prosecution evidence as to availability of electric light at the time of incident. The court also noted that the knife produced before the court as mudammal article was not the same which was used by Accused 8 for inflicting injury on the deceased. There was also no consistency in evidence as to injuries sustained by prosecution witnesses."
30. For the reasons stated above, the point raised for consideration in the present Criminal Appeal has to be answered in the negative holding that the complainant/appellant has not made out any ground to interfere with the impugned judgment and order of acquittal passed by the Trial Court acquitting the accused persons for the offences punishable under Sections 143, 147, 148, 324, 307 r/w 149 of the Indian Penal Code, in exercise of appellate powers of this Court under Section 372 of the Code of Criminal Procedure.
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31. In view of the above, the Criminal Appeal is dismissed as devoid of merit. No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE kcm