Karnataka High Court
Sri Kiran Alias Suhas vs State Of Karnataka on 27 June, 2019
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF JUNE-2019
PRESENT
THE HON'BLE MR.JUSTICE K.N.PHANEENDRA
AND
THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR
CRIMINAL APPEAL NO.1300/2011
BETWEEN:
1. Sri. Kiran alias Suhas S/o Vithal Rathod,
Aged 22 years,
R/o Mangalmurthi Nilaya,
H.No.1-891/6, NGO Colony, Gulbarga.
2. Sri. Nikhil S/o Amarsingh Pawar,
Aged 21 years,
R/o NGO Colony, Gulbarga.
3. Sri. Harish S/o Shivaram Rathod,
Aged 21 years,
R/o Yaklur Thanda,
Tq. Basavakalyan, Near Kiran House,
NGO Colony, Gulbarga.
4. Sri. Sridhan S/o Gopinath Rathod,
Aged 34 years,
R/o Jewargi Road, N.G.O. Colony, Gulbarga.
5. Sri. Vasant S/o Motilal Rathod,
Aged 34 years,
R/o Yaklur Thanda,
Tq. Basavakalyan
Now at Near Mangalmurthi Nilaya,
H.No.1, 1-891/6, NGO Colony, Gulbarga.
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6. Sri. Sunil Kumar alias Sunil
S/o Kuber Rathod,
Aged 31 years,
R/o Ukkal Thanda, Tq. Shahapur
Now at Veterinary Hospital Quarters,
Sedam Road, Gulbarga.
7. Sri. Eranna S/o Shivanna Masarkal,
Aged 21 years,
R/o Bhommanahalli,
Tq. Muddebihal,
Now at Near A.K.
Salanki, Godhutai Nagar, Gulbarga.
8. Sri. Prashant S/o Basawaraj Bholewada,
Aged 22 years, Occ:
R/o PNT Bank Colony, Gulbarga.
... Appellants
(By Sri. Narayana Reddy, Sri. Karthik Yadav & Sri. B.C.
Jaka, Advocates for A1 to A7;
V/o dated 18.01.2019 the appeal against accused /
appellant No.8 stands dismissed as abated)
AND:
State of Karnataka
By Ashok Nagar Police Station,
Gulbarga
Represented by
State Public Prosecutor
High Court Buildings, Gulbarga.
... Respondent
(By Sri. P.S.Patil, HCGP)
This Criminal Appeal is filed under Section 374(2) of
Cr.PC, praying to set aside the judgment and order dated
3/8-12-2011 in Spl.Case No.101/2009 passed by the
learned Spl. Judge, Gulbarga and acquit the appellants in
the interest of justice.
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This appeal having been heard and reserved on
01.06.2019 and coming on for pronouncement of
judgment this day, ASHOK G. NIJAGANNAVAR J.,
delivered the following:
JUDGMENT
The accused-appellants in Special Case No.101/2009 on the file of Special Judge, Gulbarga have preferred this appeal challenging the judgment dated 03.12.2011 convicting accused No.1 to 8 for the offences punishable under Sections 143, 147, 323, 504, 506, 307 and 302 R/w Section 149 of IPC and also Section 3(2)(v) of SC / ST (PA) Act, and sentencing accused No.1 to 6 to undergo life imprisonment and to pay fine of Rs.25,000/- each for the offence punishable under Section 302 R/w Sec.149 of IPC. In default of payment of fine, to undergo simple imprisonment for five years. Further sentencing accused No.7 and 8 with life imprisonment and to pay a fine of Rs.1,00,000/- each for the offences punishable under Section 302 R/w 4 Section 149 of IPC. In default of payment of fine, to undergo simple imprisonment for five years. Further it is ordered that out of fine an amount of Rs.2,50,000/- is ordered to be paid to PW18 Digambar, the brother of the deceased Satish.
2. The prosecution case in brief is that on 03.02.2009 evening at 7.30 PM, PW8 injured complainant Nityanand and his friend Satish had gone near the flour mill situated in NGO Colony to enquire the boy in the said flour mill about availability of house on rent. Since the boy was not available, the injured complainant and his friend Satish were returning on the motor cycle near the Mother Teresa school. At that time, the accused No.1 over took the motorcycle of the complainant and enquired him about his name and occupation and also abused whether he has got any sisters or not abusing and then took his friend Satish on his motorcycle near the house of Rathod in NGO Colony. 5 Thereafter, the accused No.1 and 7-8 other persons abused the complainant and his friend Satish as to why they are teasing the sister of accused No.1 by name Sheetal. The accused No.1 assaulted the complainant with his hand on his face and slapped on his cheek. Other 7-8 persons who were present at the spot and assaulted him and his friend Satish with belts. On account of the assault done by them, Satish became unconscious. The complainant was shouting because of the pain. The accused left the spot by abusing his friends Ravi and Vinod. Accused have assaulted the complainant and his friend Satish on the reason that the complainant is teasing the sister of the accused No.1. The names of accused are not known to him, but he can identify the persons who have assaulted him.
3. On the basis of this complaint, the police have registered the case at Ashok Nagar Police Station Crime No.12/2009 for the offence punishable under 6 Sections 143, 147, 341, 323, 324, 504, 506, 307 R/w 149 IPC. Later Section 302 IPC was inserted as the friend of the complainant who was also injured victim died in the hospital. During the investigation, offence under Section 3(1)(x) and 3(2)(v) of SC/ST (PA) Act were inserted as per the requisition submitted by the I.O. After completion of the investigation, the charge sheet was submitted against accused for the offences punishable under Sections 143, 147, 341, 504, 302, 307 R/w Section 149 of IPC and Section 3(1)(x) and 3(2)(v) of SC/ST (PA) Act.
4. After committal of the case to the Special Court, the accused persons appeared. The charges were framed against them. The prosecution has examined in all 29 witnesses as PW1 to PW29 and got marked 32 documents. Three material objects were identified. Three witnesses are examined on behalf of accused as DW1 to DW3 and the documents were marked as Ex.D1 to Ex.D14. The statement under 7 Section 313 of Cr.PC was recorded. All accused have denied the incriminating circumstances and they have pleaded alibi. Their submissions are also recorded. On appreciating the oral and documentary evidence placed on record, the trial court has held the accused guilty for the offences aforesaid mentioned.
5. The trial court by placing reliance on the evidence of PW8, PW11, PW12, medical evidence and other official witnesses, has convicted accused holding that the prosecution has proved the guilt beyond the reasonable doubt. The whole emphasis and basis for the trial court to come to such a conclusion is on the following...
(a) Even in the absence of proof of motive, the court is not barred from convicting the accused. The evidence of PW11 establishes the fact that the earlier to the incident, Nityanand and Satish were teasing the sister of accused No.1 Sheetal. As such the prosecution has proved the motive.8
(b) The evidence of PW11 and PW12 disclose that some of the accused were known to them as PW12 used to play cricket along with the accused Kiran, Nikhil and Sanju. Thus the identity of the accused is proved.
(c) The evidence of PW8, PW11 and PW12 clearly goes to establish that these accused were present at the time of incident and they have assaulted Nityanand and Satish with belt and caused injures to them.
(d) There is a proper explanation for the delay in registration of the FIR. As such there are no grounds to disbelieve the prosecution case.
(e) There is no discrepancy in the evidence of PW8, PW11 and PW12 regarding place of incident to disprove the prosecution version.9
(f) Medical evidence namely the evidence of Dr. Kashinath corroborates the evidence of Digambar and the evidence of PW8, PW11 and PW12.
(g) There is clear nexus between the acts of accused and the death of Satish. The evidence placed on record goes to prove that the accused have committed the offences.
6. We have heard the learned counsel appearing for the accused-appellants and learned High Court Government Pleader. Perused the judgment.
7. The learned counsel appearing for appellants has submitted that the court below has failed to appreciate the oral and documentary evidence in proper perspective. There are several contradictions in the evidence of prosecution witnesses on several material aspects which goes to 10 the root of the matter. The medical evidence is not in consonance with the oral evidence. The trial court has mainly based the conviction on the reason that the internal blood clot was the cause for the death. But according to the evidence of PW9, Dr. Rizwan, the said injury cannot be caused by use of belts which are alleged to have been used by the accused for assaulting the complainant and his friend. The injured complainant Nityanand had absconded from the hospital on 04.02.2009. But PW26 Police official has stated in his evidence that he has recorded the statement on 05.02.2009 in the hospital. Thus, there is a clear contradiction. PW14 has stated about the bleeding injuries, but the prosecution has not collected any blood stained clothes or mud from the spot. According to the prosecution, the motive for the alleged assault is that the injured complainant and his friend were teasing the sister of accused No.1. But there is no sufficient material to prove the theory 11 of motive. The material placed on record by the prosecution do not constitute the offence against the appellants. Finally it is submitted that the trial court based its conclusion by ignoring several material factors. Hence, the impugned judgment needs to be set aside.
8. In support of the aforesaid contentions, the learned counsel for the accused-appellants has relied on the following decisions.
1) AIR 2017 SC 1657 Krishnegowda and
others Vs. State of Karnataka.
2) (2016) 12 SCC 770 Indira Devi and others
Vs. State of Himachal Pradesh.
3) (2015) 17 SCC 804 Dinesh & Anr. Vs.
State of Haryana.
4) AIR 1976 SC 2488 State of Orissa Vs. Mr.
Brahmananda Nanda.
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5) AIR 1971(3) SCC 436 Yudishtir Vs. The
State of Madhya Pradesh.
9. Per contra, the learned High Court
Government Pleader for the State supported the impugned judgment.
10. In view of the submissions, the main point that arise for consideration that is whether the trial court was justified in convicting the accused?
OR Whether the judgment of conviction passed by the trial court is liable to be interfered with?
11. It is duty of the court to consider the trustworthiness of evidence on record as the witnesses are eyes and ears of the justice. In the case on hand, we feel it necessary to ascertain whether the evidence of prosecution witnesses having discrepancies, contradictions and improbable 13 versions which draws us to the irresistible conclusion that these witnesses cannot be relied on to convict the accused. Thus, we given a cursory of glance at the evidence of witnesses.
12. In the present case according to the prosecution PW3 to PW6 are the eye witnesses, but none of these witnesses have supported the case of the prosecution. The said witnesses have stated in the cross examination-in-chief that they have not seen the accused persons assaulting the injured complainant and his friend Satish. These witnesses were treated as hostile and cross examined, but nothing is elicited in the cross examination.
13. According to the prosecution, PW8, PW11 and PW2 are the eye witnesses said to have supported the prosecution version. PW8 is none other than the injured complainant.
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14. With regard to appreciation of evidence, the Hon'ble Supreme Court in the case of Krishnegowda and others Vs. State of Karnataka, reported in AIR 2017 SC 1657, has observed as under:
"Generally in the criminal cases, discrepancies in the evidence of witness is bound to happen because there would be considerable gap between the date of incident and the time of deposing evidence before the Court, but if these contradictions create such serious doubt in the mind of the Court about the truthfulness of the witnesses and it appears to the Court that there is clear improvement, then it is not safe to rely on such evidence".
15. In another decision in the case of Indira Devi and others V/s State of Himachal Pradesh, reported in (2016) 12 Supreme Court Cases 770, it is observed as under:
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"Criminal Trial - Witnesses - Injured witness - Scrutiny of testimony of -
Principles summarised
- Trial court misdirected itself by confining the consideration only to the issue as to whether an injured witness, should be relied upon or not - An injured witness is generally reliable, but even an injured witness must be subjected to careful scrutiny if circumstances and materials suggested that he may have falsely implicated some innocent persons also as an afterthought on account of enmity and vendetta - In FIR no specific role was assigned to appellants, while specific role was assigned to two co-accused - Error committed by trial court was in ignoring the contradiction and subsequent development qua the three appellants - Trial court failed to consider whether complainant (injured) should be believed only in part qua the male accused persons and not in respect of appellants - There is no corresponding injury to victim to support allegation against appellants (wives of male accused) - Such allegation has not been supported by 16 independent witness- Appellants were merely bystanders- Courts below should not have believed exaggerated and contradictory deposition of victim - Conviction of appellants set aside - Appeal allowed - Penal Code, 1860
- Ss. 307/147/148 r/w S.149 - Appellants nearby being bystanders - There was no reliable material and circumstances to rope them with the assault upon the victim made by male accused persons, with the aid of Section 149 IPC".
16. The Hon'ble Supreme Court in the case of State of Orissa V/s Brahmananda Nanda, reported in AIR 1976 Supreme Court 2488, has observed as under:
"(A) Evidence Act (1872), S. 3 -
Murder case - Eye witness not disclosing name of assailant for a day and half -
Credibility. (Penal Code 1860), 302).
Where in a murder case the entire prosecution case depended on the evidence of 17 a person claiming to be eyewitness and this witness did not disclose the name of the assailant for a day and half after the incident and the explanation offered for non-disclosure was unbelievable, held that such non- disclosure was a serious infirmity which destroyed the credibility of the evidence of the witness and that the High Court was correct in rejecting it as untrustworthy and acquitting the accused. (1971) 1 Cut WR 351, Affirmed".
17. The Hon'ble Supreme Court in the case of Yudhishtir V/s The State of Madhya Pradesh, reported in 1971(3) Supreme Court Cases 436, has observed as under:
(i) Corroboration for any evidence given by a witness may be found necessary when a court is not inclined to reject the evidence of the witness to be false, but when the evidence of a witness has been rejected as unacceptable, there is no scope for attempting to find corroboration by other independent evidence or other circumstances.
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(ii) When a particular fact deposed to by witnesses does not find mention both in the F.I.R. and in statements recorded under Section 161, Cr.P.C., it is an improvement and it cannot be considered.
18. In view of principles laid down in the aforesaid decisions, we have gone through the relevant evidence placed on record. PW8 who is the injured complainant has stated as per the averments made in the complaint and has further stated that on 03.02.2009 evening at 7.30 p.m. he along with Satish (deceased), PW11-Ravi and PW12 - Vinod had gone to NGO Colony to enquire about the room for rent. When they were returning, three persons came on the motor bike and abused them as to why they were teasing the sister of accused No.1. Further he has stated that the accused persons assaulted them on his stomach, legs and head with belt and hands. As per the phone call made his friend PW11-Ravi he 19 came in the Autorikshaw along with PW12- Vinodkumar and took the Satish to Basaweshwar Hospital. He went to the police station at night 11.30 PM and gave the complaint as per Ex.P10. The police had sent him to Government Hospital, Gulbarga. Meanwhile Satish had expired in the Hospital at Solapur. Thereafter, the police recorded his further statement on 05.02.2009. He has identified the accused by name Kiran and Sunil in the police station and the belts produced by them which are marked as MO1 and MO2. He was in the hospital for 5 days as in patient. In the cross examination, he has admitted that the further statement was given on 05.02.2009. He has not stated the names of accused and he has also admitted on 07.02.2009. The police had shown two persons in the police station and asked him to identify to them. Further he has stated that on 24.06.2009 for the first time he has told the names of accused before Dy.S.P. and has voluntarily stated 20 that the police have told him the names of eight accused persons. This evidence of PW8 clearly indicates that PW11 and PW12, were not at the spot when the accused were assaulting them. It is only when he made a call from his mobile to PW11 Ravi, he came along with PW12 in Auto PW11 has also stated in the examination-in-chief that on 03.02.2009 evening at 7.30 PM, he had gone to NGO Colony along with PW8 (injured complainant) Satish (deceased) and PW12-Vinod on two motorcycles. When they were returning on their motorcycles. The above said accused persons Kiran, Prashant and six others took them near the house of accused Kiran and all eight accused persons assaulted to Satish and Nityanand. Further he has stated that all accused started abusing and assaulting PW8 and Satish with belt. At that time, Satish became unconscious. Some persons of that area, prevented the assault being done to Satish. Meanwhile, Arjun and PW12- Vinod brought 21 the autorikshaw in which the Satish was taken to hospital, then they went to Ashok Nagar Police Station to give the complaint. On the next day on 05.02.2009, he received the information from the hospital at Solapur regarding the death of Satish. In the cross examination, he has stated that he knew that the house of the accused Kiran was in the NGO Colony near Mother Teresa school. He has admitted that he has not given statement as per Ex.D3 and Ex.D4. Further he has stated that after recording the evidence of injured complaint Nityanand, the police have recorded his statement and also statements of Arjun and PW12-Vinod at the same time, he has denied suggestions that PW8 and his friend Satish were injured while quarreling with his friends and the same is used for filing a false case against the accused.
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19. PW12-Vinod has stated that on 03.02.2009, he along with PW8 injured complainant Satish and PW11-Ravi were returning from NGO Colony on motorcycle, at that time three persons stopped them and took PW8 injured complainant and Satish on the motorcycle to NGO Colony and they started assaulting and abusing PW8 and Satish. Thereafter, he along with PW11 Ravi went to the spot and noticed that Satish had become unconscious. He was taken to hospital in autorikshaw. PW11-Ravi had called Arjun over the phone. Thereafter, they went to police station and filed a complaint. On 05.02.2009, the injured victim Satish died in the Hospital at Solapur. In the cross examination, he has admitted that he do not know the name of the person in the flour mill whom they had enquired about room. He has not given statement as per Ex.P6. In the cross examination he has stated that accused Kiran and another person by name Nikhil are known to him. 23 Further he has stated that when he along with PW11- Ravi went to the spot, they noticed that Satish had become unconscious. Then they took injured Satish in the autorikshaw brought by Arjun. He had not gone to police station along with Nityanand for giving complaint, but has admitted that in the statement given before the police, he has stated the names of eight accused persons and has voluntarily stated he has told the names of four persons only. He has admitted that he has not given the statement as per Ex.D8.
20. On going through the aforesaid evidence of PW11 and PW12, their presence on the spot is doubtful. PW8 has also stated PW11 & 12 came later. There are some discrepancies regarding place incident and recording of statements of these witnesses by the police on the date of incident. Even PW13 is also heresay witness. It appears that PW11, 24 PW12 and PW13 have been planted as eye witnesses to the incident of assault. As per the injury certificate, the injuries sustained by injured complainant and Satish are very few and they are simple in nature. Looking to the number and nature of injuries found on their body, the prosecution version that eight accused persons have assaulted them appears to be highly improbable and exaggerated.
21. Another important aspect to be considered is whether the ocular evidence of the injured victim, complainant and other independent witnesses is supported by the medical evidence and whether injuries said to have been inflicted are the main cause for the death of Satish. According to the injury certificate Ex.P21, the injuries caused are simple. The evidence of PW19 contradict the evidence of PW25, PW29, PW8, PW11 and PW12. The PW19 has 25 stated that on 04.02.2009 at 2.45 a.m. the injured complainant Nityanand was brought by the police constable for examination, they noticed three contusions over the right side of the face, on the cheek, contusion over the left side of the face, contusion over the back of the chest. All these injuries are simple in nature. He has issued the injury certificate as per Ex.P21. In the cross examination, he has clearly admitted that the injuries in Ex.P21 are possible if a person comes in contact with any hard and rough surface. The injured has given history that he was assaulted with lathi, belt and fist. On the basis of the history given, he can say that the injury No.2 can be caused with the lathi. He has also further admitted that what is mentioned in the wound certificate that injured had absconded is on the basis of entries made in the case sheet. It is pertinent to note that on 04.02.2009, the injured complainant was admitted in the hospital and on the 26 same day doctor had examined him. Injured complainant PW8 has stated that his statement was recorded when he was there in the hospital for 4-5 days as in patient. But as per evidence of PW9, injured PW8 had absconded from the hospital. In that event, there was no occasion to record his statement on 05.02.2009 has stated by the PW25. Later, the statement was recorded on 24.06.2009 by Dy.S.P. It is not the case of the PW8 that he was assaulted with lathi, but as per the history given in the hospital the information given appears to be false.
22. Regarding the injuries caused to another victim Satish, inquest mahazar was conducted as per Ex.P6, wherein it is mentioned that on account of the internal injury in the head, the death was caused. It is very strange as to how the inquest mahazar witness can notice the internal injuries in the head. According to the injury certificate and inquest 27 mahazar, other injuries over the body of deceased Satish are simple and they were not the main cause for the death. Even according to PW8, 11 and 12, accused have not assaulted on head with clubs. Thus, it is evident that there are clear discrepancies and doubtful circumstances to disbelieve the prosecution version that the death was due to the assault done by the accused. At this juncture, it is relevant to note that PW9 Dr. Rizwan who has conducted the inquest which is marked as Ex.P6. The contents of inquest mahazar reveal that there were injuries under the scalp-Haematoma about 3x2 cm under the scalp, Skull: no fracture. Opinion as to probable cause for the death: Head injury. Further PW9 has stated that he has seen three belts having metal buckles. Subdural Haemotoma is not possible to happen if a person is assaulted with belts like the one which are before the court. Even if the metalic buckles come in contact with the head portion of the 28 body Subdural haemotoma cannot be caused, but if a person is assaulted with weapons which are hard and blunt objects like iron rods, wooden blocks or bamboo sticks, or if a person is thrown with force on any hard are blunt surface or object, such Subdural haemotoma may be caused.
23. In the cross examination, he has clearly admitted that injury No.1 to 6 mentioned in column No.17 are simple in nature. There was no injury found on the person of the deceased which correspond with the injury namely subdural heamotoma that was found in the brain as noted in the P.M. report. Further he has stated that Subdural heamotoma can also be caused when a person falls from a moving vehicle. The evidence of PW9 is crystal clear that the injury found on person of the deceased do not correspond to the injury namely Subdural haemotoma. The remaining injuries No. 1 to 6 are 29 not the cause of the death as opined by PW9. Subdural Haemotoma is not possible if a person is assaulted with belts like the one which are before the court on the head, even if metalic buckles come in the contact with head portion. Therefore, at any stretch of imagination it cannot be held that the death was due to assault done by the accused persons. Even according to the prosecution, accused have assaulted with the belt and not with any other weapons. There were no bleeding injuries whatsoever found on the head portion of the deceased. The evidence of inquest mahazar witnesses is contrary to the medical evidence and records.
24. Now what remains is that whether the evidence of injured complainant namely PW8 can be believed or not. As already stated above there are several variations of contradictions between the evidence of PW8, PW11 and PW12.
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25. Once there is a clear contradiction between medical and ocular evidence coupled with several contradictions in the oral evidence then the benefit of doubt has to go to the accused.
26. As far as the finding given by the trial court on issue Nos.4, 5 and 7. The State has not preferred the appeal. On going through the evidence placed on record, there are no valid grounds. It is evident that the prosecution has failed to make out a definite case that accused had intention to kill the complainant and his friend. Even the evidence placed on record do not attract, the incriminating of Section 3(2)(v) of SC / ST (PA) Act, to prove the charges.
27. The court should always make an endeavor to find the truth, a criminal offence is not only against a individual, but also against the society. There would be failure of justice, if innocent man is punished. Thus, it is the bounden duty of the court 31 to perceive both sides namely i.e. the prosecution as well as defense. Coming by the material on record, we are of the opinion that there is no convincing evidence to show that ocular evidence and the medical evidence are in conformity with the case of prosecution to convict the accused. Hence, we disagree with the finding given by the trial court. Accordingly, we pass the following...
ORDER The appeal is allowed. The judgment of conviction and sentence passed by the learned Special Judge, Gulbarga, in Spl. Case No.101/2009 dated 03-12-2011 is hereby set aside.
The accused persons are acquitted for the offence levelled against them under Section 143, 147, 323, 504, 506, 307 and 302 R/w 32 Section 149 of IPC and also Section 3(2)(v) of SC / ST (PA) Act, If the accused have deposited any fine amount, the same is ordered to be refunded to them on proper identification and acknowledgment. If the compensation is already paid out of fine amount to the brother of the deceased Satish, the same shall not be recovered.
The bail bonds and surety bonds, if any executed by the appellants and their sureties stand cancelled.
Sd/-
JUDGE Sd/-
JUDGE SMP