Karnataka High Court
State Of Karnataka vs Shivalal S/O. Limbu Rathod on 10 April, 2023
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No. 100320 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF APRIL, 2023
PRESENT
THE HON'BLE MR JUSTICE B.VEERAPPA
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO. 100320 OF 2021 (A)
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE
ASSISTANT SUB INSPECTOR
MUNDAGOD POLICE STATION
MUNDAGOD,
DISTRICT UTTARA KANNADA
THROUGH THE ADDL
STATE PUBLIC PROSECUTOR
ADVOCATE GENERAL OFFICE
HIGH COURT OF KARNATAKA
DHARWAD BENCH .. APPELLANT
(BY SRI.V.M.BANAKAR, ADDL SPP)
VIJAYALAKSHMI
M KANKUPPI
AND:
Digitally signed by
VIJAYALAKSHMI M
KANKUPPI
Location: High
Court of Karnataka,
Dharwad Bench
1. SHIVALAL S/O. LIMBU RATHOD
AGE 55 YEARS,
OCC. AGRICULTURE,
R/O. KUSURU VILLAGE
TQ MUNDAGOD -581349
DIST UTTARA KANNADA
2. SUNIL S/O.SHIVALAL RATHOD
AGE 26 YEARS,
OCC. AGRICULTURE,
OCC KUSURU VILLAGE
TQ MUNDAGOD 581349
DIST UTTARA KANNADA
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CRL.A No. 100320 of 2021
3. ASHOK S/. VITOBA RATHOD
AGE 43 YEARS,
OCC. AGRICULTURE,
KUSURU VILLAGE
TQ MUNDAGOD -581349
DIST UTTARA KANNADA
4. SMT. PARVATI
W/O SHIVALAL RATHOD
OCC. HOUSE WIFE,
AGE 49 YEARS,
R/O. KUSURU VILLAGE
TQ MUNDAGOD-581349
DIST UTTARA KANNADA. .. RESPONDENTS
(BY SRI.SHIVAKUMAR S.BADAWADGI, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND
(3) OF CR.P.C., AGAINST THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 20.04.2021 PASSED BY THE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, U.K. KARWAR, SITTING AT SIRSI
IN SESSIONS CASE NO. 5022/2018 AND TO SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 20.04.2021 PASSED
BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, U.K.
KARWAR, SITTING AT SIRSI IN SESSIONS CASE NO. 5022/2018 AND
TO CONVICT AND SENTENCE THE RESPONDENTS / ACCUSED NO.1
TO 4 FOR THE OFFENCES PUNISHABLE U/S 341, 307, 323, 324, 355,
504, 506 R/W SECTION 34 OF IPC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
T.G.SHIVASHANKARE GOWDA J., DELIVERED THE FOLLOWING:
JUDGMENT
The State has preferred the present appeal challenging the judgment of acquittal dated 20.04.2021 passed in Sessions Case No.5022/2018 on the file of the I Additional District and Sessions Judge, Uttara Kannada, -3- CRL.A No. 100320 of 2021 Karwar, sitting at Sirsi (the 'Trial Court' for short), in acquitting the accused/respondents for the offences punishable under Sections 341, 307, 323, 324, 355, 504, 506 read with Section 34 of IPC.
2. For the sake of convenience, the parties shall be referred to as per their status in the Trial Court.
3. Brief facts of the prosecution case is that, PW-1/Radhakrishna Nagesh Revankar is a Goldsmith by avocation having a shop at Mundgod Town and he resides at Kusuru Village of Mundgod Taluk. A few days prior to 02.10.2017, there was a quarrel between the accused with their neighbour due to some misunderstanding and it was pacified by PW-1. Because of the conduct of PW-1 in interfering with the quarrel and pacifying them, the accused were angry with him. On 02.10.2017 at 10.20 a.m. while PW-1 was going in his motor cycle bearing registration No.KA-17/W-2699 to his shop in front of their house, the accused persons with a common intention gathered together, restrained him from going forward, -4- CRL.A No. 100320 of 2021 wrongfully restrained him, hurled filthy language that he has become 'Dada' of the village, his interference is too much, he is supporting their neighbour Dilip Kumar, they gave life threat and in furtherance of their action, they inflicted him head injury with iron road and club. The specific overt acts against the accused are that accused No.1 assaulted on head, left hand and back of PW-1 with a club, accused No.2 assaulted on the head of PW-1 with iron rod, accused No.3 assaulted with his hands and accused No.4 assaulted with chappal and made an attempt to commit his murder.
3.1. PW-2/Rajesh Babu Revankar, PW-3/ Smt.Nagarathna Ashok Daivagnya, PW-7/Smt.Sowmya Ganesh Kudthalkar, CW-5/Sangoti and CW-7/Raaghu came to the rescue of PW-1. While so, the accused threatened PW-1 that they will not spare him and criminally intimidated him with threat to life. PWs-2 and 3 have informed PW-4/Santhosh Nagesh Revankar, the brother of PW-1 about the incident, who rushed to the -5- CRL.A No. 100320 of 2021 spot immediately, took him to Government Hospital, Mundgod and on the information given by PW-4, the Mundgod Police visited the hospital and recorded the statement of PW-1 and set the law into motion by registering a case in Crime No.222/2017. PW-1 was referred to KIMS Hospital, Hubballi. PW-10/Lakkappa M.Naik, PSI of Mundgod Police Station, PW-11/Sathyappa Hukkeri, PSI of Mundgod Police Station have investigated the matter and ultimately PW-12/Ganapati Raghugowda, the ASI of Mundgod Police Station after collecting the records has charge sheeted the accused.
3.2. On receipt of the records, the learned Civil Judge and JMFC., Mundgod has registered a case in C.C.No.139/2018 and after compliance of Section 207 of Cr.P.C. has committed the case to the Trial Court. The Trial Court has registered the case in S.C.No.5022/2018, secured the presence of the accused, the accused pleaded not guilty of the charge under Sections 341, 307, 323, 324, 355, 504, 506 read with Section 34 of IPC. The -6- CRL.A No. 100320 of 2021 prosecution examined PWs-1 to 12 and Exs.P1 to P24 and M.Os.1 to 7 came to be marked. After examining the accused under section 313 of Cr.P.C., the trial court by the impugned judgment acquitted the accused from the charges. Challenging the said order of acquittal, the State is before this Court.
4. We have heard the arguments of Sri.V.M.Banakar, learned Additional SPP and Sri.Shivakumar S.Badawadgi, learned counsel for the accused.
5. It is the contention of the learned Additional SPP that the trial court has not properly appreciated the testimony of material witnesses; the order of acquittal is erroneous and conclusion is not based on the evidence placed before the court. PW-1 is the injured witness, he has categorically deposed about the motive and also the overt acts by the accused. PW-2/Rajesh Babu Revankar, PW-3/ Nagarathna, PW-7/Sowmya, the eye-witnesses and also PW-4/Santhosh, the brother of PW-1 have spoken -7- CRL.A No. 100320 of 2021 about the motive as well as the specific overt act against each of the accused. The injury sustained by PW-1 has been established by examining the treated Doctor i.e., PW-8/ Dr.Ravikiran and PW-9/Dr.Sharada Bandivaddar. The panch witnesses are examined to the extent of seizure of weapon of offence. The role of each of the accused has been explained. There are no material contradictions or omissions, but the reason assigned by the trial court that there are material contradictions and omissions is bad in law; the reason for non-seizure of bandage cloth tied on the head of PW-1 shall not be a ground for acquittal. Due credence was not given to the testimony of the witnesses, there is a quality in the evidence, no weight is attached to it by the Trial Court. Therefore, the impugned judgment is perverse, illegal and sought for interference.
6. Per contra, learned counsel for the accused has contended that there is an ill-will between PW-1 with the accused persons. There are contradictions and omissions in the evidence of prosecution witnesses, the eye-witness -8- CRL.A No. 100320 of 2021 PW-3 deposing ill-will against the accused in connection with the fence abutting to their house, she is alleging that the accused have encroached her land. She was not present when the incident has taken place. PW-4 is only a hear-say witness. He came to the spot after the alleged incident and PW-7, the neighbour turned hostile, he did not support the prosecution case. The allegation against the accused is that they have assaulted against PW-1 on multiple times all over the body, but contrarily, only two injuries are noted in Ex.P10/wound certificate and nothing is brought out from the evidence of PWs-8 and 9 that PW-1 has suffered multiple injuries all over the body. PW-9 is not the treated doctor, but she had only taken a CT scan of the head. The history furnished to PW-8 is only "assault". The name of the assailant was not divulged, the spot mahazar drawn by the Investigating Officer is a sham document and seizure of M.Os.1 to 7 has no support of evidence. There are omissions and contradictions and the evidence of the prosecution witnesses do not inspire the confidence of the Court and therefore, the trial court has -9- CRL.A No. 100320 of 2021 rightly recorded its finding that the prosecution evidence is unreliable and there is a second view possible and for this reason, the benefit of doubt was extended to the accused by accepting the second view.
6.1. Learned counsel also submitted that the trial court has observed the demeanor of the witnesses as it has an occasion to see the conduct of the witnesses in the witness box during the trial. The accused were given a benefit of doubt and contended that the evidence of prosecution even on re-appreciation will not inspire the confidence of this court and supported the impugned judgment.
7. We have given our anxious consideration to the materials on record and we have perused the impugned judgment.
8. The trial court has appreciated the evidence of PWs-1 to 12 and Exs.P1 to P24 and recorded its finding that though the evidence of PWs-1 and 2 have
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CRL.A No. 100320 of 2021corroborated the case of the prosecution, there are material contradictions and omissions in their evidence. PW-2 has stated that while PW-1 was going on the motor cycle, the accused persons assaulted without leaving him any opportunity to dismount from his motor cycle and after the assault only, PW-1 removed the helmet. Nothing is brought out in the prosecution evidence that at the time of riding the motor cycle, PW-1 was wearing helmet. Hence, there is a contradiction. PWs-3 and 7, who are the eye-witnesses, have turned hostile, not supported the case of the prosecution. PWs-3 and 7 came out of their house after hearing the sound. Hence, it can be said that PWs-1, 3 and 7 are not the proper eye-witnesses, they are only chance witnesses. The manner of seizure of ladies slipper at the spot is doubtful. CW-9/Dilip Kumar is the root cause for the alleged incident, who was not examined to prove the motive. It is he, who frequently and freely talking to the wife of the younger brother of accused No.1. For this reason, the advice given by accused No.1 led to vengeance. The evidence of PW-1 is not corroborated by
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CRL.A No. 100320 of 2021the evidence of PWs-2, 3 and 7, there was a bandage cloth stitched on the wound of PW-1, which was removed and handed over to the possession of PW-4, it was not seized by the Investigating Officer. Hence, the evidence of prosecution witnesses cannot be accepted, the prosecution has not proved the charge beyond reasonable doubt and for this reason, extended the benefit of doubt in favour of the accused.
9. Let us examine the weight of the evidence that the prosecution has relied upon.
(i) PW-1/Radhakrishna, the complainant and the injured. His testimony shows that two years back (examined on 04.03.2020), there was a quarrel between accused No.1 with CW-9/Dilip Kumar. He interfered with the quarrel that took place near the house of the accused, pacified them and advised both of them. Thereafter, the accused started staring at him whenever he was moving in front of the house of the accused. On 02.10.2017 at
10.00 a.m., he was going in front of the house of the
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CRL.A No. 100320 of 2021accused in his motor cycle bearing No.KA-17/W-2685. Accused Nos.2 to 4 came across the motor cycle, accused No.3 questioned him as to why he is supporting CW- 9/Dilip Kumar and abused him in a filthy language that he has become 'Dada' in the village and threatened him that he will be killed. Accused No.1 brought club and hit on his back, accused No.4 assaulted on his body with chappal and accused No.2 assaulted on his head with iron rod, due to which he sustained bleeding injury and his shirt was stained with blood. PWs-2, 3 and CW-7 came and rescued him from the assault, the accused dropped the weapons at the spot and returned home threatening that he will not be spared and shortly he will be killed. Thereafter he has informed his brother PW-4, who came and took him to the Government Hospital, Mundgod where the Police came and recorded his statement as per Ex.P1 at 12.45 p.m. and he identifies M.Os.1 to 3 as the weapons of offence, M.Os.4 and 5 are the bloodstained clothes. PW-1 did not refer to having taken treatment at KIMS Hospital, Hubballi or treatment taken at Global Hospital, Mangaluru. There is a
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CRL.A No. 100320 of 2021contrary evidence from PW-2 and 7 that it is they who informed PW-4, but PW-4 or PW-1 never refers that either of PW-2 or PW-7 informing about the incident to PW-4.
(ii) PW-2/Rajesh Babu Revankar is an eyewitness to the alleged incident. His testimony shows that he is neighbour of the accused. Originally he is a Muslim, having married to a Hindu girl, he was converted into Hindu. On the date of alleged incident, he had gone to the house of Haralu Pawar to collect his salary. His house is situated opposite to the house of accused No.1 and at that time, PW-1 was coming in his motor cycle, accused No.3 stopped PW-1 and thereafter accused Nos.1 and 2 came behind, hit against PW-1 with club. Accused No.4 holding chappal/M.O.3 hit on the body of PW-1 and he has not seen any material objects in the hands of accused No.2. At that time, CW-5/ Sangoti and CW-7/Ragoo and others were present. His evidence did not point out the presence of either of PW-2, 3 or 7.
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CRL.A No. 100320 of 2021
(iii) PW-3/Nagarathna is the eyewitness to the alleged incident. Her testimony shows that on the date of incident, the accused have stopped PW-1 in front of their house and they were threatening him. Since accused No.1 and PW-1 were cordial, she did not find anything wrong and went inside the house. Later PW-2 rushed to her house asking for the phone number of PW-4 that there was a big galata going on. She went inside the house to bring the phone number of PW-4, from inside the house she heard the hitting sound with club on PW-1 and came out, saw bleeding from the head of PW-1. She gave first aid to PW-1 and later PW-4 came and took PW-1 to hospital. On the very day at about 4.30 p.m., the Police have visited the spot, drawn Ex.P2/mahazar and seized the iron rod, club and chappal as per M.Os.1 to 3. She identifies M.Os.6 and 7 are the bloodstained cement pieces. Her cross-examination points out that she is deposing ill-will against the accused in connection with the fence dispute alleging that accused have encroached her land, she had a frequent quarrel with accused No.4 and
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CRL.A No. 100320 of 2021she belongs to the caste of PW-1 and she is cordial with him. From the evidence of PW-3 it is very clear that when the accused had stopped, there was no occasion for her to see anything wrong and went inside the house. When she was inside the house, she heard the sound and she came to know about the galata through PW-2 and later went out of the house, gave first aid to PW-1. If the testimony of this witness is considered in toto, she was not an eyewitness and she has not seen the overt act by each of the accused.
(iv) PW-7/Sowmya Ganesh is also a neighbour and eyewitness to the alleged incident. Her testimony shows that she is residing 8 houses away from the house of the accused. She had observed frequent visit of CW-9/Dilip Kumar to the brother's house of accused No.1 and for this reason, accused no.1 was under the wrong impression that CW-9/Dilip Kumar is moving freely with the wife of his brother. In this regard, CW-9 was advised not to go to the house of brother of accused No.1 and the accused were
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CRL.A No. 100320 of 2021deposing ill-will against CW-9. On 02.10.2017 she came to know that while PW-1 was going to his shop on his motor cycle, the accused persons stopped him in front of the house of the accused and assaulted him with chappal and rod. She came out and saw the bleeding on the head of PW-1 with bloodstains on the clothes. The fellow villagers have pacified PW-1 and later PW-4 came and took PW-1 to the hospital. It is, thus, clear that she was not an eyewitness and the reason for the alleged incident was CW-9/Dilip Kumar talking to the wife of the brother of first accused freely, giving room to a doubt about his conduct.
(v) PW-4/Santhosh Nagesh Revankar is the elder brother of PW-1. His evidence shall only be considered regarding motive part and also he carrying PW-1 to the hospital. He is a hear-say witness. His testimony shows that as per the call received from PW-1, he went near the house of accused No.1. PW-1 informed him that accused No.1 assaulted with club on his back, hands and all over
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CRL.A No. 100320 of 2021the body. Accused No.3 held him tightly, accused No.4 assaulted him with chappal, accused No.2 assaulted on his head with rod. He did not inform about accused No.3 assaulting PW-1. He was also informed by PW-1 that accused No.3 was telling PW-1 that his conduct is too much and that he has become 'Dada' of the village and that he will not be spared. When PW-1 was in the Mundgod hospital, the Police came and recorded his statement. As regards the motive is concerned, PW-4 did not point out anything. The testimony of PW-4 can only be taken into consideration to the extent that on coming to know about the incident, he came near the house of accused, saw the injured PW-1 and took him to Mundgod Hospital.
(vi) PW-6/Chandrakanth Rathod, the Head Constable of Mundgod Police Station. He received the MLC information from Mundgod Government Hospital at 12.00 noon on 02.10.2017, he visited the hospital, found PW-1 was present with injury, after ascertaining the fitness of
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CRL.A No. 100320 of 2021PW-1 to give statement through the Doctor, he recorded the statement of PW-1 as per Ex.P1, on return to Police Station, registered Ex.P7/FIR and forwarded it to the Court. His cross-examination brought out that he was not informed by any person except MLC intimation from the hospital.
(vii) PW-5/Vishwanatha Padmanabha Achari is the panch witness to the spot panchanama as well as the seizure of bloodstained clothes of PW-1 at the Mundgod Police Station. His testimony shows that spot inspection conducted by the Police on the date of alleged incident at about 4.00 p.m. near the house of the accused under Ex.P2/mahazar and seizure of M.Os.1, 2 and 3/weapons and bloodstained cement pieces as per M.O.6 and 7. Few days later, he was called to the Police Station where M.Os.4 and 5/bloodstained clothes of PW-1 were shown to him produced by PW-4 and same was seized under Ex.P4/mahazar. His cross-examination has brought out that he is the father of CW-9/Dilip Kumar, the person who
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CRL.A No. 100320 of 2021is responsible for the alleged incident. He admits that in the village, the elders had advised his son CW-9 to mend his way, as he was teasing the girls in the village. Hence, the evidence of PW-5 naturally supports the case of the prosecution, as PW-1 helped his son in the previous quarrel with the accused. Hence, PW-5 is not an independent witness and there is no naturality in his evidence.
(viii) PW-8/Dr.Ravikiran, the Medical Officer of Primary Health Centre, Mundgod. His testimony shows that on 02.10.2017, PW-4 brought PW-1 with a history of 'assault' and he has observed the following injuries:
(a) A cut lacerated wound over the vertex measuring 3 x 1 cm with active bleeding;
(b) Contusion with imparted marks over the left arm and back;
He has sutured the scalp injury and cut lacerated wound and referred PW-1 to KIMS Hospital, Hubballi. Mundgod Police have also visited the hospital, taken his
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CRL.A No. 100320 of 2021endorsement at Ex.P6 that PW-1 is fit to give statement. Having done so, he has issued Ex.P10/wound certificate. On 05.02.2018, the Police have shown him M.O.1/rod and he has examined it and gave his opinion that such rod can cause injury as noticed on the head of PW-1 as per Ex.P12. The cross-examination of PW-8 brought out that if a person being assaulted with force using a club all over the body, there is possibility of the victim sustaining injuries all over the body. As we found from the evidence of PW-1 and the so-called eyewitnesses, the accused have assaulted with rod, club and chappal all over the body. But PW-8 did not find any injury all over the body except two injuries referred supra. The medical evidence supports the defence that the prosecution has exaggerated the version to give more seriousness to the alleged incident. Such improvement has no support from the medical evidence.
(ix) PW-9/Dr.Sharada Bandivaddar is a Senior Specialist at KIMS Hospital, Hubballi. Her testimony
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CRL.A No. 100320 of 2021shows that on 02.10.2017 at about 2.40 p.m. PW-1 was referred from Taluka Hospital, Mundgod. By taking CT scan, she noticed no abnormality in the head of PW-1. To this extent, she has issued Ex.P13/injury certificate. Her cross-examination has brought out that she has not treated PW-1 and even she was not aware who has treated PW-1 at Mundgod Hospital. Hence, her evidence only confirms that there is no abnormality in the injury part of PW-1.
(x) PW-10/Lakkappa Mallappa Naik, the PSI of Mundgod Police Station. His testimony shows that on 02.10.2017, from PW-6, he took over the investigation, visited the spot between 4.30 p.m. and 5.45 p.m., inspected the spot shown to him by PW-3 by securing PW- 5 and CW-3/R.Vasudeva, as panch witnesses. During the spot inspection, he noticed bloodstains on the cement floor, sample was taken at M.Os.6 and 7, M.Os.1 to 3/club, iron rod and chappal were lying on the spot, same were seized under Ex.P2/mahazar by taking Ex.P3/photo.
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CRL.A No. 100320 of 2021On 05.10.2017, PW-4 brought and produced M.Os.6 and 7/bloodstained clothes of PW-1 and same were seized under Ex.P4/mahazar.
(xi) PW-11/Sathyappa Appayya Hukkeri is another PSI of Mundgod Police Station, whose testimony shows getting spot sketch from PWD and collecting Ex.P18/RFSL report and sending PW-1 for opinion report by PW-8.
(xii) PW-12/Ganapathi Raghu Gowda, the ASI of Mundgod Police Station, who collected Ex.P13/report from KIMS Hospital, Hubballi and obtained Ex.P24/certificate under Section 65(B) of Evidence Act from CW-18/Kumara Banakar regarding photographs, collected Ex.P12/report from PW-8 and on completing the formalities filing the charge sheet. His cross-examination has clearly brought out that he was not aware of PW-1 taking treatment at Global hospital, Mangaluru. PW-1 himself in his testimony did not say for having taken treatment either at KIMS Hospital, Hubballi or at Global Hospital, Mangaluru.
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10. This is the weight of the prosecution evidence which according to the Addl.SPP is qualitative, clear, cogent, corroborative and fit for acceptance.
11. Having carefully considered the evidence of the prosecution through its witnesses PWs-1 to 12 and also perusing Exs.P1 to P24, the points that arise for our consideration are:
i) Whether the Trial Court has committed an error in appreciation of evidence?
ii) Whether the impugned judgment is perverse and erroneous?
12. As we notice, the totality of the prosecution evidence suggests that CW-9/Dilip Kumar was visiting the house of the brother of accused No.1. He has developed intimacy with the wife of his brother, by observing this, he was advised and warned for his conduct. It is also brought that CW-9 is a eve-teaser of the fellow girls of the village. In this regard, there were frequent quarrels between
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CRL.A No. 100320 of 2021accused and CW-9, for which, PW-1 pacified the quarrel. For the reason of PW-1 supporting an eve-teaser in the village prompted ill-will between accused and PW-1. As referred supra, the evidence of PW-3 and PW-7 are said to be the eyewitnesses, PW-3 is an interested witness prosecuting ill-will against the accused and she cannot be treated as an independent witness much apart the evidence of PW-7 did not stand in support of the prosecution. As we have observed above, PW-3 after seeing the accused talking to PW-1, she went inside the house, when she came out saw injury on the head of PW-
1. Hence, she cannot be an eyewitness, she is only a chance witness and therefore, we are unable to accept the submission of the learned Addl.SPP that PWs-3 and 7 are the eyewitnesses. PW-4, the brother of PW-1 is only a chance witness.
13. Now the only witness that remains for consideration is PW-2/Rajesh Babu Revankar. We have evaluated his evidence and in the course of cross-
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CRL.A No. 100320 of 2021examination, it is elicited from his mouth that while PW-1 was sitting on the motor cycle with helmet when assault was caused. According to him, 15 to 20 times for about 4 to 5 minutes assault was hurled all over the body of PW-1. On the contrary, only two injuries are stated by PW- 8/Dr.Ravikiran, the Medical officer. Then it can be said that the evidence of PW-2 is an exaggeration to portray the incident very serous. PW-2 is not aware on which part of the head, injury was caused, only after assault, PW-1 removed the helmet. Neither he nor any other people rescued PW-1 from the assault in the hands of the accused. Thus, it is very clear that when the assault was caused, PW-1 was wearing helmet, nobody rescued him and there were 15 to 20 hurls of assault by means of rod, club and chappal. Inspite of it, as per the medical evidence, only two injuries were found, one on the head and another one on the left arm and back. It is the specific overt act against accused No.2 that it is he who used M.O.1/iron rod to assault on the head of PW-1. But, as we noticed from PW-2 that he has not at all seen any
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CRL.A No. 100320 of 2021material objects in the hands of accused No.2. If accused No.2 was not holding any material object at the time of assault, doubt arises in the mind of the court as to how could he be able to inflict head injury by means of M.O.1/iron rod. The testimony of PW-2 did not point out presence of PWs-3 and 7 at the spot. PW-2 refers the presence of CW-5/Sangoti and CW-7/Raaghu, who were not brought before the court as independent witnesses. PW-5 is the father of the culprit CW-9/Dilip Kumar, an eve-teaser of the village, who comes before the court as a responsible pancha. PW-1 was supporting his son CW-9 in the village.
14. The prosecution mainly placed reliance on the evidence of interested persons, who are having enmity against the accused, these witnesses have not seen the incident, only they came to the spot after the incident and the so-called eye-witness PW-2 has not seen the weapon of offence in the hands of accused No.2 and there is no allegation against accused Nos.1, 3 and 4 that they have
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CRL.A No. 100320 of 2021caused head injury to PW-1. PW-1 sustaining head injury is self-proclaimed by himself which is explained by PW-8 that if a person going in a motorcycle falls on the road may sustain such injury. Admittedly, at the time of incident, PW-1 was riding the motorcycle, only after assault, he removed the helmet and during so, he might have fallen down and there is every possibility of he sustaining injury on the head. Ex.P12 is the opinion report. Ex.P13 is the report of PW-9/Doctor that there was no abnormality in the head injury and the so-called injury sustained by PW-1 was only a cut lacerated injury which is simple in nature. Even after the assault, PW-1 himself alighted from the motor cycle, secured the presence of PW-4 to the spot and goes to the hospital shows that there is no severity in the injury, much apart, inspite of the accused threatening PW-1 that they will be going to kill him, he was very well present in front of the house of the accused persons till the arrival of his brother/PW-4 to the spot. All these conducts of PW-1 and the testimony of PWs-2, 3, 4 and 7 clearly goes to
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CRL.A No. 100320 of 2021demonstrate that their version of evidence is not inspiring the confidence of the court. There are contradictions in their evidence and for this reason, the trial court held that the evidence is not satisfactory and not acceptable.
15. We have carefully perused the impugned judgment. The trial court has properly appreciated the evidence of PW-1 as an injured, the evidence of PWs-2, 3 and 7 as eye-witnesses, PW-4 as a chance witness, PW-5 as the panch witness and the medical evidence of PWs-8 and 9 and rest of the evidence by the Police Officers. Inspite of learned Addl.SPP contending that the evidence is qualitative, we are unable to accept the said submission as the evidence did not take support from the evidence of prosecution witnesses referred to supra. Thus, the finding recorded by the trial court is based on the evidence and we do not find any illegality or error committed by the trial court.
16. In this regard, it is useful to refer to the judgment of the Hon'ble Apex Court in the case of Nand
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CRL.A No. 100320 of 2021Lal and Others -vs- The State of Chattisgarh reported in 2023 LiveLaw (SC) 186, wherein at para-32 and 34, it has been observed as follows:
"32. Undisputedly, the present case rests on the evidence of interested witnesses. No doubt that two of them are injured witnesses. This Court, in the case of Vadivelu Thevar v. The State of Madras, has observed thus:
"11. ......Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way -- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material
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particulars by reliable testimony, direct or circumstantial......"
33. It could thus be seen that in the category of "wholly reliable" witness, there is no difficulty for the prosecution to press for conviction on the basis of the testimony of such a witness. In case of "wholly unreliable" witness, again, there is no difficulty, inasmuch as no conviction could be made on the basis of oral testimony provided by a "wholly unreliable"
witness. The real difficulty comes in case of the third category of evidence which is partly reliable and partly unreliable. In such cases, the court is required to be circumspect and separate the chaff from the grain, and seek further corroboration from reliable testimony, direct or circumstantial.
34. Undisputedly, in the present case, PWs 2 and 9 are injured witnesses. As such, their presence cannot be disputed. However, as already observed hereinabove, in case of proven previous enmity, a possibility of false implication cannot be ruled out. In the present case, it would be seen that the entire family of accused No. 12 Paltan Jangde has been roped in. Though PW-2 has identified and named the accused in her cross examination, she has stated that, though she recognized the relatives of the accused persons, she does not remember their names. As such, the possibility of implicating the entire family of Paltan cannot be ruled out."
17. On re-appreciation of the prosecution evidence, we are of the opinion that it is neither wholly reliable nor
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CRL.A No. 100320 of 2021wholly unreliable. Our view is fortified by the judgment of the Hon'ble Supreme Court in the case of Arulvelu -vs- State reported in (2009) 10 SCC 206, wherein the Hon'ble Supreme Court held at paragraphs 33 and 40 as under:
"33. In Chandrappa v. State of Karnataka [(2007)] 4 SCC 415 : (2007) 2 SCC (Cri) 325] this Court reiterated the legal position as under: (SCC p. 432, para 42) "(1) An appellate court has full power to review, re-appreciate 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' 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.
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CRL.A No. 100320 of 2021(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."
40. Unquestionably, the appellate court has power to review and reappreciate the entire evidence on record. The appellate court would be justified in reversing the judgment of acquittal only if there are substantial and compelling reasons and when the judgment of the trial court is found to be a perverse judgment. Interfering in a routine manner where other view is possible is contrary to the settled legal position crystallised by the aforementioned judgments of this Court. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trail court. The trial court's acquittal bolsters the presumption that he is innocent. This fundamental principle must be kept in view while dealing with the judgments of acquittal passed by the trial court."
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18. In the light of the principles enunciated in the dictum of the Hon'ble Apex Court stated supra, we do not find any ground to interfere with the impugned judgment of acquittal. Accordingly, we answer both points raised in this appeal, in the negative.
19. In the result, we pass the following;
ORDER The appeal is dismissed as being devoid of merits. The order of acquittal recorded by the trial court in the impugned judgment is hereby confirmed.
SD/-
JUDGE SD/-
JUDGE KNM List No.: 1 Sl No.: 31