Karnataka High Court
Doddaiah S/O Giddaiah vs State By Rural Police Chikamagalur on 25 August, 2012
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR JUSTICE K. N. KESHAVANARAYANA
CRIMINAL APPEAL No.202/2005 (C)
BETWEEN:
1. Doddaiah,
S/o Giddaiah,
Aged 42 years,
Occ: Agriculturist.
2. G.G.Padmaiah,
S/o Giddaiah,
Aged 38 years,
Occ: Coolie.
Both are Residing at
Ganjalgodu Village,
Chikamagalur Taluk,
Chikamagalur District. .....Appellants
(By Smt.Namitha Mahesh B.G., Advocate)
AND :
State by Rural Police,
Chikamagalur.
Represented by the
State Public Prosecutor,
High Court of Karnataka,
Bangalore. ....Respondent
(By Sri.Rajesh Rai.K., HCGP)
2
This Criminal Appeal is filed under Section 374
read with Section 401 Cr.P.C by the advocate for the
appellants against the Judgment dated 29.01.2005
passed by the Presiding Officer, Fast Track Court-II,
Chikmagalur, in S.C.No.52/2003-convicting the
appellant/accused No.1 for the offences punishable
under Sections 307 and 504 of IPC and convicting the
appellant/accused No.2 for the offence punishable
under Section 307 of IPC and sentencing the
appellants/accused Nos.1 and 2 to undergo S.I. for 5
years and to pay fine of Rs.5,000/- each in default S.I.
for 1 year for the offence punishable under Section 307
of IPC and sentencing the appellant/accused No.1 is
ordered to pay a fine of Rs.1,000/- in default S.I. for 3
months for the offence punishable under Section 504 of
IPC.
This Criminal Appeal coming for hearing on this
day, the court delivered the following:
JUDGMENT
This appeal by the accused Nos.1 and 2 in Sessions Case No.52/2003 before the Fast Track Court- II, Chikmagalur, is directed against the judgment of conviction and order of sentence dated 29.01.2005 passed in the said case, convicting both the appellants for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code (for short I.P.C.) and in addition convicting the appellant No.1 - accused No.1 for the offence punishable under Section 504 of 3 I.P.C. and sentencing both of them to undergo imprisonment for a period of five years and to pay fine of Rs.5,000/- for the offence punishable under Section 307 of I.P.C. and sentencing accused No.1 to pay fine of Rs.1,000/- for the offence punishable under Section 504 of I.P.C.
2. The case of the prosecution in brief was that the two accused being brothers and P.W.1 - Rajegowda are residents of Ganjalagodu Village in Chikmagalur District. The land of P.W.1 and accused No.1 are adjacent to each other. At about 08:00 a.m. on 25.09.2002, P.W.1 went near his land with a pair of oxen and tied them with a rope near the land and came back to the house. At about 09:00 a.m., accused No.1 came near the house of P.W.1, abused P.W.1 in filthy language stating that the ox of P.W.1 has strayed into his land and has grazed the crop in the land and thereby, he is put to great loss. At that time, P.W.1 consoled accused No.1 and asked him to accompany him to the land to see as to what has happened there. 4 Accordingly, when P.W.1 and accused No.1 were proceeding towards the land, on the way, accused No.2 joined accused No.1 and on the way to the land, both accused Nos.1 and 2 went on abusing P.W.1 in filthy language. When P.W.1 asked accused as to why they are abusing him, accused No.2 took up a stone and assaulted him on his right fore hand and at the same time, accused No.1 assaulted him with a katti on the hind portion of his head, behind the left ear. As a result of this assault, P.W.1 sustained bleeding injury and fell unconscious. After some time, he regained conscious and came near the house of accused No.1 and learnt that both the accused were not in the house. In the meanwhile, P.W.2 - Putta and one Mahesha took him to the Hospital in Chikmagalur and thereafter, at about 10:00 a.m., P.W.1 came to the Police Station and made an oral complaint and the said oral complaint was reduced into writing as per Ex.P-1. On the basis of Ex.P-1, P.W.7 registered the case in Crime No.290/2002 against the two accused and the F.I.R. was submitted to 5 the Jurisdictional Magistrate. On the same day, P.W.8 - Nataraj, Police Sub-Inspector who took up investigation of the case from P.W.7, visited the scene of occurrence and conducted spot mahazar - Ex.P-7 and during the spot mahazar, he seized katti - M.O.1 and stone, lying at the scene of occurrence. On 27.09.2002, P.W.8 seized blood stained shirt and towel, M.Os.2 and 3 of P.W.1 under mahazar - Ex.P-3. When P.W.1 was sent to the Hospital, he was examined and treated by P.W.6 - Dr. S. Rudramurthy in M.G.Hospital, Chikmagalur. P.W.8 during investigation, recorded the statement of the witnesses, collected the wound certificate, arrested the accused persons and after completion of the investigation, laid the charge sheet for the offences punishable under Sections 307, 504 and 324 read with Section 34 of I.P.C.
Upon committal of the case to the Court of Sessions, the appellants appeared before the learned Sessions Judge and pleaded not guilty for the charges levelled against them and claimed to be tried. In order 6 to bring home the guilt of the accused persons for the charges levelled, the prosecution examined P.Ws.1 to 8 and relied on documentary evidence Ex.P-1 to Ex.P-5 as well as M.Os.1 to 3. During their examination under Section 313 of the Code of Criminal Procedure, the accused persons denied all the incriminating circumstances appearing against them in the evidence of the prosecution witnesses. The accused did not choose to lead any defence evidence. The defence of the accused was one of the total denial and that of false implication. It was their further defence that in the background of the complaint lodged by accused No.1 against P.W.1 alleging that P.W.1 had humiliated and insulted accused No.1 by abusing him touching his caste, P.W.1 has filed a false complaint, to coerce accused No.1 to withdraw his complaint.
3. After hearing both sides and on assessment of oral as well as documentary evidence, the learned Sessions Judge by the judgment under appeal held that the prosecution has proved the guilt of the accused 7 persons for the offence punishable under Section 307 read with Section 34 of I.P.C. and guilt of the accused No.1 for the offence punishable under Section 504 of I.P.C. Consequently, the learned Sessions Judge convicted both the accused for the aforesaid offences and sentenced them to undergo imprisonment and also to pay fine, as noticed supra. Being aggrieved by the said judgment of conviction and order of sentence, the accused are in appeal before this Court.
4. I have heard Smt. Namitha Mahesh B.G., learned counsel appearing for the appellants and Shri Rajesh Rai K., learned Government Pleader appearing for the respondent - State.
5. Learned counsel for the appellants contended that the judgment under appeal is highly perverse and illegal, in as much as the findings recorded by the learned Sessions Judge are full of surmises and conjunctions and not based on legal evidence. She further contended that the reading of the judgment 8 under appeal indicates that the learned Sessions Judge even at the beginning of the judgment itself had shown his inclination to convict the accused and for that purpose he has assigned some reasons. She contended that the learned Sessions Judge has completely ignored the various circumstances brought out in the evidence of the prosecution witnesses which highly improbablises the case of the prosecution and therefore, the judgment under appeal is the result of non application of mind by the learned Sessions Judge to the entire evidence. She contended that though P.W.1 is stated to be an injured witness, having regard to the glaring inconsistency in his evidence from the contents of the complaint and the improbabilities in his evidence and in the light of the medical evidence, the testimony of P.W.1 alone could not have been the basis for recording conviction and the learned Sessions Judge ought to have looked for some corroboration to the evidence of P.W.1 and in the absence of any such corroboration, utmost confidence ought not to have been reposed on the evidence of 9 P.W.1. She further contended that having regard to the inconsistency between contents of Ex.P-1 and the oral evidence of P.W.1 as also the absence of any injury on the left fore arm and also non production of the stone said to have been seized from the alleged scene of occurrence, the participation of accused No.2 in the alleged offence itself is highly doubtful and therefore, the learned Sessions Judge has committed grave error in convicting the accused No.2 for the offence punishable under Section 307 of I.P.C. with the aid of Section 34 of I.P.C. Therefore, she contended that the conviction of accused No.2 for the offence punishable under Section 307 read with Section 34 of I.P.C. is without any basis, as such, it is highly perverse and is liable to be set aside. With regard to the conviction of the accused No.1, learned counsel contended that in the light of the inconsistent evidence of P.W.1 and several improbabilities in the case of the prosecution, in the absence of any corroboration to the testimony of P.W.1 and in the background of admitted fact that the accused 10 No.1 had lodged a complaint against P.W.1 alleging abuse touching his caste, the learned Sessions Judge ought to have given the benefit of doubt to the accused No.1 and ought to have acquitted accused No.1 also. Therefore, the learned counsel sought for allowing the appeal and acquittal of both the appellants - accused.
6. Per contra, the learned Government Pleader, sought to justify the judgment under appeal contending that the learned Sessions Judge on proper appreciation of the oral as well as the documentary evidence, has recorded findings which are sound and reasonable regard being had to the evidence on record, as such, the judgment under appeal does not warrant interference by this Court.
7. In the facts and circumstances of the case, and in the light of the submissions made on both sides, the points that arise for my consideration are: -
"i) Whether the judgment under appeal suffers from any perversity or illegality warranting interference by this Court? 11
ii) Whether the learned Sessions Judge is justified in convicting the appellants for the offence punishable under Section 307 read with Section 34 of I.P.C. and convicting the accused No.1 for the offence punishable under Section 504 read with Section 34 of I.P.C.?"
8. I have bestowed my anxious considerations to the submissions made on both sides and perused the records secured from the Trial Court.
9. As noticed supra, the alleged incident said to have occurred at about 09:15 a.m. on 25.09.2002 in Ganjalagodu Village of Chikmagalur Taluk and District. As per the evidence of P.Ws.1 and 7, P.W.1 came to the Police Station at about 10:00 a.m. and made an oral complaint before P.W.7 which came to be recorded as per Ex.P-1 and based on the same, case came to be registered and F.I.R. was submitted to the Jurisdictional Magistrate. As per the endorsement made on the F.I.R. available in the records, the F.I.R. reached the Jurisdictional Magistrate at about 12:30 p.m. on the 12 same day. Having regard to the facts and circumstances of the case and the time at which the complaint was purported to have been recorded and the time at which the F.I.R. reached the Jurisdictional Magistrate, I find no delay either in lodging the complaint or the F.I.R. reaching the Jurisdictional Magistrate.
10. With regard to the presence of injury on the person of P.W.1 is concerned, there is ample evidence. In fact, from the tenor of cross-examination of the material witnesses, it is noticed that the accused has not seriously disputed about P.W.1, having sustained an injury on the hind portion of the head on that day, since, according to the suggestions put to P.W.1 in the cross-examination, he sustained the said injury on account of fall on a stone. The evidence of P.W.6 - Dr.S.Rudramurthy, establishes that P.W.1 was brought to M.G.Hospital, Chikmagalur on 25.09.2002 and on examination, he noticed lacerated wound measuring 5 c.m. X 1 c.m. X bone deep and accordingly, he issued 13 wound certificate, as per Ex.P-4 and according to him, the injury was non grievous in nature. As could be seen from the contents of Ex.P-4, the injured was examined by the Doctor at 11:15 a.m. In the cross-examination of P.W.6, it is elicited that he did not found any injury on the left hand of P.W.1. It is further elicited that if sharper side of M.O.1 is used, an incised wound would be caused. It is further elicited from him that if one come in contact with hard and rough surface, the injury as mentioned in Ex.P-4, may occur. He admitted that Police did not show him M.O.1. Thus, in the cross- examination of P.W.6, the defence has not disputed the presence of injury on the person of P.W.1. Therefore, the prosecution has satisfactorily established the presence of injury on the person of P.W.1. The next crucial aspect required to be considered is, as to whether the accused were in anyway responsible for the said injury.
11. Before considering the evidence on record, it is necessary to note that the reading of the judgment 14 under appeal gives an impression that the learned Sessions Judge in the beginning of the judgment itself had made up his mind to convict both the accused persons and for that purpose, he has tried to assign some reasons. This is more evident from the fact that even though the evidence on record did not establish meeting of mind between accused Nos.1 and 2 and even though there was absolutely no acceptable evidence with regard to the assault by accused No.2 on P.W.1, the learned Sessions Judge has proceeded to hold that accused No.2 had shared a common intention with accused No.1 and therefore, he is answerable for the acts of accused No.1.
Be that as it may, let me consider the evidence on record to find out whether the learned Sessions Judge is justified in convicting the appellants.
12. As noticed supra, according to P.W.1 in respect of the incident alleged, he lodged an oral report which was reduced into writing as per Ex.P-1. 15 According to the contents of Ex.P-1, at about 08:00 a.m. on that day P.W.1 went near the land from his house along with a pair of oxen and tied them near the land and came back to the house. It is further stated in Ex.P-1 that after sometime accused No.1 came near the house of complainant abusing the complainant stating that one of the ox by snapping the rope, has strayed in to his land and has damaged the crop. Thereafter, both the complainant and accused No.1 together proceeded towards the land and on the way to the land, accused No.2 joined accused No.1, both the accused abused the complainant and when the complainant questioned the accused as to why they are abusing him, accused No.2 assaulted the complainant with a stone on the left fore hand, while accused No.1 assaulted him with katti on the hind portion of the head. Thus, from the contents of Ex.P-1, it is noticed that the alleged incident of assault occurred on the way to the land of the accused and P.W.1. Accused No.2 said to have joined the accused No.1 on the way. According to the oral evidence of 16 P.W.1, after accused No.1 came near the house abusing, both of them went near the land and there P.W.1 saw accused No.2 near the land. According to the oral evidence of P.W.1, the alleged incident of assault occurred in the land. Of course, he does not specify as to whether the incident occurred in the land of accused No.1 or in his land. Contrary to this, as per the spot mahazar - Ex.P-2, the scene of occurrence was in the land of one Lokegowda. According to the contents of Ex.P-2, weapons like katti and stone said to have been used for the commission of the offence, were also lying there and they were seized from that place. Thus, there is no consistency as to the alleged scene of occurrence. As per the contents of complaint, the incident occurred on the way to the land. as per the oral evidence of P.W.1, the incident occurred in the land, whereas according to the spot mahazar, the incident occurred in the land of one Lokegowda. This glaring inconsistency in the case of the prosecution has not been noticed by the learned Sessions Judge, in the course of the 17 judgment under appeal. As noticed supra, according to the contents of Ex.P-1, accused No.2 joined accused No.1 on the way to the land. Whereas, as per the evidence of P.W.1 when he and accused No.1 came near the land, accused No.2 was found there. Thus, there is inconsistency in this regard also. Though according to the contents of Ex.P-1, P.W.1 was assaulted by accused No.2 with the stone on the left fore hand, as per the medical evidence, there was no injury on his left fore hand. P.W.1 has tried to contend that though he showed scratch injury on the left fore arm, Doctor told him that it would dry away, said explanation cannot be accepted. P.W.1 was shown to have been examined by P.W.6 in M.G.Hospital, Chikmagalur, at about 11:30 a.m. i.e., within about 2½ hours of the incident. If really there was an injury on the left fore hand as stated by P.W.1, the Doctor would not have certainly missed the same. In the cross-examination, P.W.6 has categorically stated that P.W.1 did not show any injury on his left hand. Thus, the evidence of P.W.1 with 18 regard to the alleged assault by accused No.2 is not corroborated by medical evidence. The absence of any injury on the left fore hand of P.W.1 creates great amount of doubt about the participation of accused No.2 in the alleged incident. Though according to the Investigating Officer, the stone said to have been used by accused No.2 to assault P.W.1 was also seized under mahazar Ex.P-2, the said stone has not been produced before the Court. Thus, the weapon said to have been seized was deliberately not produced before the Court. This is also a strong circumstance, which creates a great amount of doubt about the presence of accused No.2. The learned Sessions Judge though noticed all these facts and circumstances, has brushed aside those circumstances on the ground that the fact of accused No.2 to joining accused No.1 on the way to the land would indicate sharing of common intention and therefore, accused No.2 is answerable for the act committed by accused No.1. The reasoning adopted by the learned Sessions Judge in this regard is highly 19 perverse and is without any basis. No doubt, the evidence of an injured witness carries more weightage and is not necessarily to be corroborated. However, if there are glaring inconsistencies in the evidence of such injured witnesses and is highly discrepant, it would be unsafe to place reliance on such evidence without looking for corroboration. In the case on hand, except the evidence of P.W.1, there is no other evidence with regard to the alleged incident of assault. In the light of the glaring inconsistency, in the evidence of P.W.1 from the contents of Ex.P-1 and also the improbability about the participation of accused No.2, the learned Sessions Judge ought not to have reposed utmost confidence on the evidence of P.W.1 with regard to the participation of accused No.2. Therefore, having regard to the evidence on record, the learned Sessions Judge is not justified in convicting the accused No.2 for the offence punishable under Section 307 of I.P.C with the aid of Section 34 of I.P.C. There is no legal evidence to indicate that accused No.2 had joined accused No.1 and participated 20 in the incident and that he had shared a common intention with accused No.1. Therefore, the judgment convicting the accused No.2 for the aforesaid offence with the aid of Section 34 of I.P.C. is highly perverse and cannot be sustained.
13. As noticed supra, there is no consistency as to the alleged scene of occurrence. PW.1 in his cross- examination has admitted that Accused No.1 had filed a complaint against him alleging that he had abused him touching his caste. This was the cause, according to Accused No.1, for the complainant to file a false complaint against him though, there was no such incident of assault. The learned Sessions Judge during the course of the judgment has rejected the said contention on the ground that the presence of injury on the body of the complainant would show that the incident of assault has taken place, therefore, the motive attributed against PW.1 cannot be accepted. The evidence of PW.1 is required to be evaluated in the background of the admitted fact that Accused No.1 had 21 lodged the complaint against PW.1 alleging that PW.1 had abused him touching his caste and thereby insulted and humiliated him. The evidence of PW.1 regarding the alleged assault by Accused No.1 with a Katthi like MO.1, does not gain corroboration from the medical evidence. It is the definite say of PW.1 that Accused No.1 assaulted him with the sharper side of the weapon. It is elicited from PW.6-Dr.S. Rudramurthy that, if sharper side of the weapon like MO.1 is used for assault, it would result in incised wound and if the blunter side is used, it would result in lacerated wound. The learned Sessions Judge while considering this aspect of the matter has held that the say of PW.1 that from the sharper side of the weapon he was assaulted is also to mean as assaulted by the blunter side. When a witness states that he was assaulted by a sharp-edged weapon like chopper or sickle etc., it has to be presumed that the assault was by the sharper side unless it is specifically stated by the witnesses that the blunter side of the weapon was used for assault. 22 According to the medical evidence, PW.1 had sustained lacerated wound, therefore, it belies the say of PW.1 that he was assaulted by the sharper side of the katthi. This creates great amount of doubt about the alleged assault. According to the complainant, the immediate cause for the incident of assault was that, the oxen owned by PW.1 strayed into the land of Accused No.1 and damaged the crop therein and on account of this, Accused No.1 was annoyed and became angry. However, except the say of PW.1 that Accused No.1 abused him stating that the crop in the land has been damaged, there is no other circumstance to indicate the crop in the land of Accused No.1 having been damaged by the oxen owned by PW.1. Thus, the alleged immediate cause for the incident has not been probablised. It is in the evidence of PW.1 that no one had seen him going towards the land along with Accused No.1 and Accused No.1 abusing him on the way. Admittedly, the house of PW.1 is in the midst of the village surrounded by other houses. In the cross- 23 examination, PW.1 has stated that when Accused No.1 came near the house and abused, his wife and son, were in the house and at that time, even the neighbourers had gathered there. However, neither the wife and son of PW.1 nor any of his neighbourers have been examined before the Court to support or to corroborate the say of PW.1. Therefore, the say of PW.1 that Accused No.1 came near his house and abused him in filthy language and thereafter they went together towards the land, has not been corroborated by any other evidence. In the background of Accused No.1 filing the complaint against PW.1, the un-corroborated testimony of PW.1 cannot be the sole basis to record conviction against Accused No.1.
14. As noticed supra, MO.1 was seized on the same day from the scene of occurrence. According to the report of the FSL, the weapon-MO.1 was not stained with blood. Therefore, the forensic evidence does not establish the user of the weapon-MO.1.24
15. Having regard to the discussions made above, I am of the considered opinion that the learned Sessions Judge has committed error in reposing utmost confidence on the testimony of PW.1 and to base the conviction of Accused No.1 on such un-corroborated and inconsistent evidence of PW.1. The findings recorded by the learned Sessions Judge are highly perverse and illegal. The learned Sessions Judge has failed to notice various infirmities in the evidence of PW.1 and also the improbabilities, which creates great amount of doubt about the incident alleged. In this view of the matter, the judgment of conviction passed by the trial Court convicting Accused No.1 for the offences punishable under Sections 307 and 504 of IPC also cannot be sustained.
16. In view of the above discussions, the appeal is allowed. The judgment of conviction and order of sentence dated 29.01.2005 passed by the Presiding Officer, Fast Track Court-II, Chikmagalur, in S.C. No.52/2003, convicting the appellants/accused for the 25 offence punishable under Section 307 r/w. 34 of IPC and convicting Accused No.1 for the offence punishable under Section 504 of IPC, is hereby set aside. The appellants are acquitted of those charges.
The bail and surety bonds executed by the appellants/accused are ordered to be discharged.
Fine amount, if any deposited by the appellants/accused, is ordered to be refunded to them.
SD/-
JUDGE RSH/KGR*