Karnataka High Court
Daya @ Dayananda 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.2178/2017
C/W
CRIMINAL APPEAL Nos.2171/2017, 2172/2017
AND 2193/2017
IN CRL.A No.2178/2017:
BETWEEN:
DAYA @ DAYANANDA
S/O. YAGAPPA,
AGED ABOUT 55 YEARS,
R/AT KAMANAHALLI,
BAGALORE,
(PRESENTLY R/AT
# 82, INNASAPPA LAYOUT,
CONVENT ROAD, KAMANAHALLI,
THOMAS TOWN POST,
BANGALORE 560084.
(NOW IN JUDICIAL CUSTODY,
CENTRAL PRISON, BANGALORE) .. APPELLANT
(BY SRI HASHMATH PASHA, SENIOR ADVOCATE A/W
SRI KALEEM SABIR, ADVOCATE FOR M/S HASHMATH PASHA AND
ASSOCIATES)
2
AND:
STATE OF KARNATAKA
BY THALAGATTAPURA POLICE,
BANGALORE-
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR)
...RESPONDENT
(SRI V.M. SHEELVANT, SPP-I A/W
SRI VIJAYKUMAR MAJAGE, ADDL SPP)
****
THIS CRIMINAL APPEAL IS FILED BY THE APPELLANT -
ACCUSED NO.13 UNDER SECTION 374(2) OF THE CODE OF
CRIMINAL PROCEDURE, 1973, PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION DATED 29.11.2017 AND ORDER OF
SENTENCE DATED 06.12.2017 PASSED AGAINST HIM IN S.C.
No.231/1998 C/W S.C.NO.135/1999 C/W S.C.NO.212/1999 C/W
S.C.NO.297/1999 ON THE FILE OF HON'BLE VII ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU, CONVICTING HIM FOR OFFENCES UNDER SECTIONS
143, 148, 448, 324, 428 AND 302 R/W 149 OF IPC AND
CONSEQUENTLY ACQUIT HIM FOR THE SAID OFFENCES AND HE
MAY BE SET AT LIBERTY TO MEET THE ENDS OF JUSTICE.
IN CRL.A No.2171/2017:
BETWEEN:
1. POUL
S/O MARISWAMY,
AGED ABOUT 54 YEARS,
R/AT SOMANAHALLI VILLAGE,
BANGALORE DISTRICT
3
2. CHOWRAPPA
S/O ANGADI ANTHONY,
AGED ABOUT 57 YEARS,
R/AT SOMANAHALLI VILLAGE,
BANGALORE DISTRICT.
(NOW ALL ARE IN JUDICIAL CUSTODY,
CENTRAL PRISON, BANGALORE)
...APPELLANTS
(BY SRI HASHMATH PASHA, SENIOR ADVOCATE A/W
SRI KALEEM SABIR, ADVOCATE FOR
M/S HASHMATH PASHA AND ASSOCIATES)
AND:
STATE OF KARNATAKA
BY THALAGATTAPURA POLICE,
BANGALORE-
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR)
...RESPONDENT
(SRI V.M. SHEELVANT, SPP-I A/W
SRI VIJAYKUMAR MAJAGE, ADDL SPP)
****
THIS CRIMINAL APPEAL IS FILED BY THE APPELLANTS -
ACCUSED NOS.16 AND 17 UNDER SECTION 374(2) OF THE CODE
OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION DATED 29.11.2017 AND ORDER OF
SENTENCE DATED 06.12.2017 PASSED AGAISNT THEM IN S.C.
No.231/1998 C/W S.C.NO.135/1999 C/W S.C.NO.212/1999 C/W
S.C.NO.297/1999 ON THE FILE OF HON'BLE VII ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU, CONVICTING THEM FOR THE OFFENCES UNDER
SECTIONS 143, 148, 448, 324, 428 AND 302 R/W 149 OF IPC AND
CONSEQUENTLY ACQUIT THEM FOR THE SAID OFFENCES AND
THEY MAY BE SET AT LIBERTY, TO MEET THE ENDS OF JUSTICE.
4
IN CRL.A No.2172/2017:
BETWEEN:
1. AROGYA SWAMY,
S/O. CHOWRAPPA,
AGED ABOUT 62 YEARS,
R/AT BYATARAYANAPURA,
BANGALORE,
2. CHINNAPPA
S/O. YAGAPPA,
AGED ABOUT 67 YEARS,
R/AT BYATARAYANAPURA,
BANGALORE,
3. DAVID
S/O. RAJAPPA,
AGED ABOUT 42 YEARS,
R/AT KANAKAPURA TALUK,
RAMANAGARA DISTRICT
4. BABU @ JOHN PRASAD
S/O. BALASWAMY,
AGED ABOUT 43 YEARS,
R/AT KAMANAHALLI,
BANGALORE.
5. BARATHLOME
S/O. RAJAPPA,
AGED BOUT 39 YEARS,
R/AT KAMANAHALLI,
BANGALORE.
(NOW ALL ARE IN JUDICIAL CUSTODY
CENTRAL PRISON, BANGALORE)
...APPELLANTS
(BY SRI HASHMATH PASHA, SENIOR ADVOCATE A/W
SRI KALEEM SABIR, ADVOCATE FOR
M/S HASHMATH PASHA AND ASSOCIATES)
5
AND:
STATE OF KARNATAKA
BY THALAGATTAPURA POLICE,
BANGALORE-
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR)
...RESPONDENT
(SRI V.M. SHEELVANT, SPP-I A/W
SRI VIJAYKUMAR MAJAGE, ADDL SPP)
****
THIS CRIMINAL APPEAL IS FILED BY THE APPELLANTS -
ACCUSED NOS.7, 8,9,10 AND 12 UNDER SECTION 374(2) OF THE
CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET ASIDE
THE JUDGMENT OF CONVICTION DATED 29.11.2017 AND ORDER
OF SENTENCE DATED 06.12.2017 PASSED AGAISNT THEM IN S.C.
No.231/1998 C/W S.C.NO.135/1999 C/W S.C.NO.212/1999 C/W
S.C.NO.297/1999 ON THE FILE OF THE VII ADDITIONAL DISTRICT
AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU, CONVICTING THEM FOR THE OFFENCES UNDER
SECTIONS 143, 148, 448, 324, 428 AND 302 R/W 149 OF IPC AND
CONSEQUENTLY ACQUIT THEM FOR THE SAID OFFENCES AND
THEY MAY BE SET AT LIBERTY, TO MEET THE ENDS OF JUSTICE.
IN CRL.A No.2193/2017:
BETWEEN:
1. PUSHPARAJ @ BABU,
S/O SHANTHARAJU,
AGED ABOUT 48 YEARS,
R/AT THOMAS TOWN,
BANGALORE-560084.
6
2. RAVI @ RAVI PRASAD
S/O SHANTHARAJU,
AGED ABOUT 42 YEARS,
R/AT THOMAS TOWN,
BANGALORE-560084
(NOW BOTH ARE IN JUDICIAL CUSTODY,
CENTRAL PRISON, BANGALORE)
...APPELLANTS
(BY SRI HASHMATH PASHA, SENIOR ADVOCATE FOR A/W
SRI KALEEM SABIR, ADVOCATE FOR
M/S HASHMATH PASHA AND ASSOCIATES)
AND:
STATE OF KARNATAKA
BY THALAGATTAPURA POLICE,
BANGALORE-560109.
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR)
...RESPONDENT
(SRI V.M. SHEELVANT, SPP-I A/W
SRI VIJAYKUMAR MAJAGE, ADDL SPP)
****
THIS CRIMINAL APPEAL IS FILED BY THE APPELLANTS -
ACCUSED NOS.2 AND 3 UNDER SECTION 374(2) OF THE CODE OF
CRIMINAL PROCEDURE, 1973, PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION DATED 29.11.2017 AND ORDER OF
SENTENCE DATED 06.12.2017 PASSED AGAISNT THEM IN S.C.
No.231/1998 C/W S.C.NO.135/1999 C/W S.C.NO.212/1999 C/W
S.C.NO.297/1999 ON THE FILE OF HON'BLE VII ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU, CONVICTING THEM FOR THE OFFENCES UNDER
SECTIONS 143, 148, 448, 324, 428 AND 302 R/W 149 OF IPC AND
CONSEQUENTLY ACQUIT THEM FOR THE SAID OFFENCES AND
THEY MAY BE SET AT LIBERTY, TO MEET THE ENDS OF JUSTICE.
7
THESE CRIMINAL APPEALS 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
Criminal Appeal No.2178/2017 is filed by Accused No.13; Criminal Appeal No.2171/2017 is filed by Accused Nos.16 and 17; Criminal Appeal No.2172/2017 is filed by Accused Nos.7,8,9,10 and 12; and Criminal Appeal No.2193/2017 is filed by Accused Nos.2 and 3. All these appeals are filed against the common Judgment of conviction and order of sentence dated 29.11.2017/6.12.2017 made in S.C. No.231/1998 c/w S.C. No.135/1999 c/w S.C. No.212/1999 c/w S.C. No.297/1999 on the file of VII Addl. District & Sessions Judge, Bangalore Rural district, Bangalore, in so far as convicting Accused Nos.2,3,7 to 10, 12,13, 16 and 17 for the offences punishable under Sections 143, 148, 448, 324, 428, 302 r/w 149 of IPC and sentencing each of them to undergo imprisonment for a period of 3 months for the offence under Section 143 r/w 149 of IPC; imprisonment for a period of one year with fine of Rs.1,000/- for the offence under Section 148 r/w 149 of 8 IPC; imprisonment for a period of six months for the offence under Section 448 r/w 149 of IPC; imprisonment for a period of one year with fine of Rs.1,000/- for the offence under Section 324 r/w 149 of IPC; imprisonment for a period of six months with fine of Rs.2,000/- for the offence under Section 428 r/w 149 of IPC; and imprisonment for life with fine of Rs.25,000/- for the offence under Section 302 r/w 149 of IPC.
I. BRIEF FACTS OF THE CASE
2. It is the case of the prosecution that Accused No.1 - Shantharaju (now dead) had a land in Somanahalli village, Uttarahalli Hobli, Bangalore south taluk, to an extent of 2 acres and he was growing fruits and vegetables in the said land. He had put fencing with gate for the entire extent of land and in his land, there was an electric transformer and from it, electricity was being supplied to the areas in and around the land. The deceased Narayana and PW.1 - Thimmaiah, PW.2 - Doddavenkatappa and PW.3 - Hombalaiah, residents of Somanahalli village had larger extent of lands and also sugarcane zagari machine (Alemane) for which electricity supply was from the transformer fixed in the land 9 of Accused No.1. The deceased Narayana and their family members used to enter the land of Accused No.1 and unauthorisedly fix fuse and keep open the gate of garden and because of the said act, cattle used to enter and eat the crop and cause damage. Therefore, Accused No.1 has objected and hence, the deceased Narayana has abused and threatened Accused No.1.
3. It is further alleged that on 9.5.1998 at 6.30 p.m. when accused No.4 - Francis Kumar and his sister's husband - D. Francis while returning from their land near Joseph farm, the deceased Narayana and his servant Nagaraj picked up quarrel with them and exchange of words and hand blows took place between them. When Accused No.4 and D. Francis were returning and when they came near Mariswamy's house, the deceased Narayana and PWs.1 and 2 and their men came in a group and attacked them though they had taken shelter in the house of Mariswamy and after entering the said house by removing tiles, assaulted Accused No.4 and his brother-in-law - D. Francis. On the incident, the deceased Narayana lodged a complaint at 8.30 p.m., pursuant to which FIR in Crime NO.77/1998 was registered for the offences punishable under 10 the provisions of Sections 341 and 307 of IPC. On the same incident for having caused injuries to Accused No.4 - Francis Kumar and D. Francis, D. Francis had lodged complaint upon which case was registered in Crime No.78/1998 for the offences punishable under Sections 324, 307 r/w 34 of IPC.
4. It is further case of the prosecution that on 9.5.1998 at about 10.30 p.m., when PWs.1 to 3 and others were in their house, the Accused No.1 - Shantharaju (now dead) and his relatives and 10 others said to have trespassed into their house and assaulted PWs.1 to 3 and caused damage to the household articles and tractor and went away. After some time, one electric Krishnappa had brought the deceased Narayana in an injured condition stating that near their land on the way from Thalagattapura Police Station to village in Maruthi omni van, the deceased Narayana was attacked by accused persons and caused injuries. Immediately, the deceased Narayana and Pws.1 to 3 and others went to Police Station and from there to Deepak Nursing Home for treatment and from Deepak Nursing Home, they were referred to Victoria Hospital and from Victoria hospital, they were referred to NIMHANS hospital 11 and again referred back to Victoria hospital and thereafter took treatment in Deepak Nursing Home as an inpatient. PW.1 lodged written complaint before the Police at 11.45 p.m. upon which, Crime No.79/1998 was registered for the offences under the provisions of Sections 143, 147, 148,448, 324, 307, 341 r/w 149 of IPC. After the death of the deceased, Section 302 of IPC was also included.
5. It is further case of the prosecution that for the same incident, the accused No.2 - Pushparaj had lodged a complaint stating that he and his friends by name Pratap, Sundar and David while returning from Thatagupe towards their house in Somanahalli near the house of PW.1 - Thimmaiah, PWs.1 to 3 and others with an intention to kill them assaulted with chopper and clubs and caused serious injuries. Accordingly, Accused NO.2 - Pushparaj had lodged the complaint against PWs.1 to 3 and others, upon which, Crime No.80/1998 was registered for the offences punishable under Sections 143, 147, 148, 323, 324, 307 r/w 149 of IPC.
12
6. It is further case of the prosecution that in respect of the incident happened at 6.30 p.m. on 9.5.1998, two FIRs in Crime No.77/1998 and Crime No.78/1998 were treated as case and counter-case and investigated by different Police Officers independently. In Crime No.77/1998, charge sheet was filed and in Crime No.78/1998, the Police filed the 'B' report. Therefore, D. Francis defacto complainant challenged the 'B' report by filing complaint under Section 200 of the Code of Criminal Procedure as protest memo and the Chief Judicial Magistrate took cognizance of the offences alleged and examined the complainant and his witnesses and thereafter, the case was tried before the said Court and ultimately, both the cases ended in acquittal.
7. It is further case of the prosecution that in respect of the incident happened at 10.30 p.m. on 9.5.1998, two FIRs in Crime No.79/1998 and 80/1998 were registered. The FIR in Crime No. 79/1998 was registered on the complaint of PW.1 - Thimmaiah and FIR in Crime No.80/1998 was registered on the complaint of Accused No.2 - Pushparaj and both were treated as case and counter-case, but investigated by different Investigating Officers 13 independently. The Police Officer who investigated Crime No.79/1998 filed the charge sheet against 18 accused persons and later, the matter was committed to the learned Sessions Judge and numbered as S.C. No.231/1998 c/w 135/1999 c/w 212/1999 c/w 297/1999 and trial was conducted. In respect of the case registered in Crime No.80/1998 on the complaint of Accused No.2 - Pushparaj, 'B' report was filed without proper investigation. In S.C. No.231/98 and connected matters, the learned Sessions Judge after committal framed the charges, read over and explained to the accused, who pleaded not guilty and claimed to be tried.
8. In order to prove the guilt of the accused, the prosecution has examined PWs.1 to 19 and got marked the material documents - Ex.P1 to Ex.P21 and material objects - Mos.1 to 13. On behalf of the defence, the accused got examined DWs. 1 and 2 and the material documents - Ex.D1 to Ex.D33. After completion of the evidence of the prosecution witnesses, the statements of the accused as contemplated under Section 313 of the Code of Criminal Procedure were recorded. The accused denied all the incriminating evidence adduced by the prosecution witnesses. 14
II. FINDINGS RECORDED BY THE LEARNED SESSIONS JUDGE
9. The learned Sessions Judge based on the material on record, has formulated six points for consideration. After considering both the oral and documentary evidence on record, the learned Sessions Judge has recorded a finding that the prosecution has proved beyond all reasonable doubt that on 9.5.1998 at about 10.30 p.m. at Somanahalli village within the jurisdiction of Thalaghattapura Police Station, with a common intention, the accused persons assaulted PW.1, PW.2 and PW.3, thereby committed an offence punishable under Section 143 r/w 149 of IPC.
10. The learned Sessions Judge further recorded a finding that the prosecution has proved beyond all reasonable doubt that the accused persons on the same day and at the same time, being the members of the unlawful assembly, to disrupt the peace, had armed with deadly weapons viz., iron rod, club, cycle chain, thereby committed an offence punishable under Section 148 r/w 149 of IPC.
15
11. The learned Sessions Judge further recorded a finding that the prosecution has proved beyond all reasonable doubt that on the same day and at the same time, the accused persons trespassed into the house of PW.1 - Thimmaiah, thereby committed an offence punishable under Section 448 r/w 149 of IPC.
12. The learned Sessions Judge also recorded a finding that the prosecution has proved beyond all reasonable doubt that the accused persons on the same day and at the same time, being the members of the unlawful assembly armed with deadly weapons - iron rod, club, cycle chain assaulted PW.1 - Thimmaiah, PW.2 - Doddavekatappa and PW.3 - Hombalaiah, thereby committed an offence punishable under Section 324 r/w 149 of IPC.
13. The learned Sessions Judge further recorded a finding that the prosecution has proved beyond all reasonable doubt that the accused being the members of the unlawful assembly entered the house of PW.1, destroyed T.V., radio, wall clock, petromax and the tractor bearing Regn No.KA02-T-688, thereby committed an offence punishable under Section 427 r/w 149 of IPC. 16
14. The learned Sessions Judge further recorded a finding that the prosecution has proved beyond all reasonable doubt that the accused being the members of the unlawful assembly assaulted the deceased Narayana at Somanhalli gate with an iron rod, club, cycle chain and caused serious injuries and committed murder, thereby committed an offence punishable under Section 302 r/w 149 of IPC.
15. Accordingly, the trial Court by the impugned judgment of conviction and order of sentence, convicted and sentenced the accused persons for the offences punishable under Sections 143, 148, 448, 324, 428, 302 r/w 149 of IPC. Hence, the present appeals are filed by the accused persons.
16. We have heard the learned counsel for the parties. III. ARGUMENTS ADVANCED BY SRI HASHMATH PASHA, LEARNED SENIOR COUNSEL FOR THE APPELLANTS -
ACCUSED
17. Sri Hashmath Pasha, learned senior counsel for the appellants - accused persons in these criminal appeals contended that the impugned judgment of conviction and order of sentence 17 passed by the trial Court convicting the accused persons for the offences punishable under Sections 143, 148, 448, 324, 428 and 302 r/w 149 of IPC, is erroneous and contrary to the material on record and the same is liable to be set aside. He further contended that there is an inordinate delay in lodging the complaint and the 1st FIR is suppressed by the prosecution. PWs.1 to 5 are the witnesses for the offences under Sections 448, 324, 427, 143 r/w 149 of IPC. PW.1 narrated the incident occurred on that day and the evidence of other prosecution witnesses do not connect any of the accused for commission of the offences. Further, no Test Identification parade was conducted to find out who assaulted the deceased Narayana. He would further contend that no identification features are mentioned either in the complaint or in the FIR. The evidence of PWs.5 and 8 regarding the assault on the deceased Narayana cannot be relied upon as they are not able to identify any of the accused. The said material aspects have not been considered by the learned Sessions Judge while passing the impugned judgment of conviction and order of sentence. 18
18. Learned senior counsel further contended that there was no source of power (electricity supply) at the place of incident. PWs.1 to 4 have not explained the injuries on Accused Nos.2 and 9 and one Sundar, thereby they have suppressed the genesis of the case. PWs. 1 to 5 and 8 are the accused persons in the counter- case. The said material has not been considered by the trial Court in the proper perspective while passing the impugned judgment of conviction and order of sentence.
19. Learned senior counsel would further contend that with regard to the incident happened at 10.30 p.m. on 9.5.1998, two FIRs are registered. The FIR was registered in Crime No.79/1998 on the complaint of PW.1 - Thimmaiah and the FIR was registered in Crime No.80/1998 on the complaint of Accused No.2 - Pushparaj and both were treated as case and counter-case, but investigated by different Investigating Officers independently. The Police Officer who investigated Crime No.79/1998 filed the charge sheet against 18 accused persons and later, the matter was committed to the learned Sessions Judge and numbered as S.C. NO.231/1998 c/w 135/1999 c/w 212/1999 c/w 297/1999 and trial was 19 conducted. In respect of the case registered in Crime No.80/1998, 'B' report was filed without proper investigation. The 'B' report was subject matter of PCR, which was subsequently numbered as S.C. No.76/2004. The Accused No.2 - Pushparaj in the present case is the complainant in the counter-case - S.C. No.76/2004 and PWs.1 to 5 & 8 in the present case are accused in the counter-case. The learned Sessions Judge conducted trial separately in both the cases and in S.C. No.231/1998 and connected matters, convicted the present appellants - accused persons and in S.C. No.76/2004, acquitted the accused persons therein (i.e., PWs.1,2,3,4,5 and 8 in the present case), thereby injustice caused to the present accused persons. Learned senior counsel would further contend that both the FIRs are one sided and do not disclose the true facts. He contended that two Investigating Officers cannot conduct the investigation in case and counter-case and only one Investigating Officer has to conduct the investigation in both the case and counter-case to dig out the real truth and to find out which case is true, in view of Clause 1179 of Police Manual. The same has not been done. On that ground also, the impugned judgment of conviction and order of sentence cannot be sustained. 20
20. Learned senior counsel would further contend that the cause of death of the deceased Narayana as per the evidence of the doctor (PW.11) was due to the respiratory failure as a result of complication of injuries sustained and it does not amount to murder as per post-mortem report - Ex.P5. Though the death memo dated 15.5.1998 - Ex.P8 issued by the Bangalore Hospital, the doctor who treated the deceased Narayana has not been examined. He would further contend that Dr. Santosh, Deepak Nursing Home, who issued Ex.P11 to Ex.P14 - Wound Certificates dated 31.7.1998, has not been examined, but examined only PW.18. To identify the signature of Dr. Santosh, no records are available in the nursing home. The incident occurred on 9.5.1998 and Dr.Santosh worked for only one month and as on 31.7.1998, Dr. Santosh was not on job and therefore, the wound certificates issued by the hospital on 31.7.1998, cannot be believed. The medical certificate issued is doubtful as the doctor who treated the deceased has not been examined.
21. The learned Senior Counsel further contended that the entire investigation is tainted from the beginning till the completion. 21 The said material has not been considered by the learned Sessions Judge while passing the impugned judgment of conviction and order of sentence against the accused persons. Therefore, he sought to allow these appeals filed by the accused persons by setting aside the impugned judgment of conviction and order of sentence.
22. In support of his contentions, the learned senior counsel relied upon the following judgments:
1. Karnataka v. Balappa Bhau Vadagave, reported in ILR 1984 Kar. 21 (paragraphs 70, 71, 72, 74, 75)
2. Sudhir v. State of M.P., reported in (2001)2 SCC 688 (paragraph-8)
3. Nathi Lal v. State of U.P., reported in (1990) Supp. 5 SCC 145
4. Meharaj Singh (L/Nk.) v. State of U.P., reported in (1994)5 SCC 188 (with regard to FIR...
paragraph-12)
5. Balbir v. Vazir, reported in (2014)12 SCC 670 (with regard to identification of the accused - paragraph-30) 22
6. Rehmat v. State of Haryana reported in (1996)10 SCC 346 (with regard to identity of the accused - paragraph-10)
7. Musa Khan v. State of Maharashtra, reported in AIR 1976 SC 2566 (with regard to Section -149 of IPC ... paragraph-5)
8. Lakshmi Singh v. State of Bihar reported in (1976)4 SCC 394 (with regard to identity ..
paragraph-12)
9. State of Rajasthan v. Rajendra Singh, reported in AIR 1998 SC 2554 (paragraph-7)
10. A.P. v. Punati Ramulu, reported in 1994 Supp (1) SCC 590 (paragraph-5) IV. ARGUMENTS ADVANCED BY SRI V.M. SHEELVANT, LEARNED SPP FOR THE RESPONDENT - STATE
23. Per contra, Sri V.M. Sheelvant, learned State Public Prosecutor while justifying the impugned judgment of conviction and order of sentence, has contended that though two complaints filed by PW.1 - Thimmaiah and Accused No.2 - Pushparaj, are arising out of the same incident occurred on 9.5.1998, the mere 23 conducting investigation by two Investigating Officers in respect of two complaints between the parties, will not vitiate the proceedings in view of the provisions of Section 465 of the Code of Criminal Procedure. He would further contend that PW.2 and 3 are injured, who stated that the accused persons assaulted the injured witnesses and the deceased. Mere minor discrepancies in the cross-examination of the witnesses, will not prejudice the case of the prosecution. He would further contend that PWs.1,2,3 and 4 are the eye witnesses to the incident occurred at 10.30 p.m. and PWs.5 and 8 are the eye witnesses to the incident occurred at 11.45 p.m. The evidence clearly corroborates each other and the incident is proved. He would further contend that the presence of the accused at 10.30 p.m. as per FIR, is not disputed. The defence is contrary to the complaint allegations. PWs.1 to 5 identified the accused persons in the Court while PW.5 and 8 are eye witnesses to the assault on the deceased Narayana. As per the wound certificate - Ex.P11 of the deceased issued by Dr. Santosh, the deceased sustained 12 injuries. The death of the deceased Narayana was due to respiratory failure as a result of complication of the injuries sustained. Further, PWs.1 to 3 have 24 also sustained injuries. He would further contend that mere delay in filing the complaint, cannot take away the entire prosecution case, when the evidence on record clearly implicates the accused in the commission of the offences. Not conducting Test Identification parade is not a ground to acquit the accused persons. Both the oral and documentary evidence on record clearly depicts that the accused involved in the homicidal death of the deceased. In the facts and circumstances, the learned Sessions Judge rightly convicted the accused persons. Therefore, he sought to dismiss these criminal appeals.
24. In support of his contentions, learned SPP relied upon the following judgments:
1. Dev Karan v. State of Haryana, reported in (2019)8 SCC 596 (with regard to Section 149 of IPC ... paragraphs 15, 16 and 17 to 20)
2. Mano Dutt v. State of U.P., reported in (2012)4 SCC 79 (with regard to Section 302 r/w 34 of IPC .. paragraphs 44 to 46)
3. State of U.P. v. Naresh, reported in (2011)4 SCC 324 (paragraphs 26, 27 and 30) 25
4. Bhajan Singh v. State of Haryana reported in (2011)7 SCC 421 (paragraphs 33, 34 and 40)
5. Abdul Sayeed v. State of M.P., reported in (2010)10 SCC 259 (paragraphs 25 to 27)
6. Mohar v. State of U.P., reported in (2002)7 SCC 606 (paragraphs 11 and 12) V. POINT FOR DETERMINATION
25. In view of the rival contentions urged by the learned counsel for the parties, the only point that would arise for our consideration in these criminal appeals is:
Whether the appellants - accused persons in these criminal appeals have made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the trial Court convicting them for the offences punishable under Sections 143, 148, 448, 324, 428, 302 r/w 149 of IPC, in the facts and circumstances of the case ?
26. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including the original records carefully. 26 VI. EVIDENCE ADDUCED BY THE PROSECUTION WITNESSES AND THE DEFENCE WITNESSES AND THE DOCUMENTS RELIED UPON
27. Being the appellate Court, in order to re-appreciate the entire material on record, it is relevant to consider the evidence of the prosecution witnesses and the defence witnesses and the documents relied upon by them.
(i) PW.1 - Thimmaiah, who is the elder brother of the deceased is the complainant and eye witness to the incident. He lodged the complaint as per Ex.P1. He deposes with regard to the incident occurred near his house and stated that the deceased Narayana was brought by Electric Krishnappa on his scooter in an injured condition stating that he was assaulted near his land. He supported the prosecution case.
(ii) PW.2 - Doddavenkatappa is elder brother of the deceased Narayana and he is an injured eye-witness for the incident near his house. He supported the prosecution case.
27
(iii) PW.3 - Hombalaiah is 2nd elder brother of the deceased Narayana and he is an injured eye witness for the incident near his house. He supported the prosecution case.
(iv) PW.4 -Shanthappa is the eye witness to the incident near the house. He supported the prosecution case.
(v) PW.5 - Nagaraju is brother-in-law of the deceased Narayana. He is an eye witness to the incident near the land at Somanahalli road. He supported the prosecution case.
(vi) PW.6 - Somashekar is the witness to the spot mahazar - Ex.P2. He turned hostile to the case of the prosecution.
(vii) PW.7 - Narayana is the witness to the spot mahazar - Ex.P2. He turned hostile to the case of the prosecution.
(viii) PW.8 - Vijaykumar, who is the brother-in-law of the deceased is the eye witness to the incident of assault on deceased near land on Somanahalli road. He supported the prosecution case.
28
(ix) PW.9 - M.S. Basavaraj is the Village Secretary, who issued House extract in Form No.9 of PW.1's house. He supported the prosecution case.
(x) PW.10 - D.C.K. Kalegowda is the panch to the Ex.P4 - inquest mahazar held in Bangalore Hospital Mortuary. He supported the prosecution case.
(xi) PW.11 - Dr. Anand is the doctor, who conducted autopsy over the dead body of the deceased Narayan on 15.5.1998 in between 12 noon and 1.30 p.m. and issued the post-mortem report
- Ex.P5. He has opined that the death was due to respiratory failure due to complication of injuries sustained. He supported the prosecution case.
(xii) PW.12 - Venkataswamy is the Head Constable and Station House Officer of Thalghatpura Police Station, who received the Death Memo on 15.5.1998 at 7.45 a.m, from Bangalore Hospital as per Ex.P8 intimating the death of Narayana. Accordingly, he registered the 2nd FIR under Section 302 of IPC as per Ex.P7. He supported the prosecution case.
29
(xiii) PW.13 - V. Shekar is the Investigating Officer, who took up further investigation on 15.5.1998 and conducted inquest. He supported the prosecution case.
(xiv) PW.14 - Marigowda is the Head Constable, who carried the 1st FIR - Ex.P10 on 10.5.1998 and delivered to the Magistrate and on 15.5.1998, he carried the 2nd FIR - Ex.P7 and delivered to the Magistrate. He also carried counter-case FIR in Crime No.80/1998 as per Ex.D8 and delivered to the Magistrate. He supported the prosecution case.
(xv) PW.15 - K.V. Puttathimmegowda is the Circle Inspector of Police, who took up further investigation from PW.13 on 21.7.1998 and conducted investigation and filed the charge sheet on 10.3.1999. He supported the prosecution case.
(xvi) PW.16 - Venkatachala is the panch for recovery of weapons at the instance of Accused No.2 to Accused No.4 under Ex.P15 - mahazar. He turned hostile to the case of the prosecution.
30
(xvii) PW.17 - Chowdappa is the ASI of Thalagattapura Police Station. He was the Station House Officer on 9.5.1998 at 11.45 p.m. He has deposed that PW.1 - Thimmaiah presented a written complaint as per Ex.P1, upon which Crime No.79/1998 was registered and issued the FIR as per Ex.P10 and on 10.5.1998, he visited the scene of occurrence and drawn the spot mahazar. He supported the prosecution case.
(xviii) PW.18 - Dr. Ravishankar is the doctor of the Deepak Nursing Home, who deposed that one doctor by name Dr. Santhosh Kumar said to have treated the deceased Narayana and PWs.1 to 3 and issued the wound certificates as per Ex.P11 to Ex.P14. He identified the signature of Dr. Santhosh Kumar. He supported the prosecution case.
(xvix) PW.19 - K. Rudrappa is the panch for recovery of the weapon at the instance of Accused No.1 and Accused Nos.2 to 4 under Ex.P15 - mahazar. He has turned hostile to the case of the prosecution.
31
(xx) DW.1 - Dr.Ajith Bendict Royan is the Medical Officer in Hosmat Hospital. He has examined the Accused No.2 - Pushparaj, Accused No.4 - Francis Kumar and one Mr. Sundar Raj on 12.5.1998 and deposed regarding injuries sustained and treatment given. The medical records issued by him are produced and marked as per Ex.P18 to Ex.P27. He supported the case of the defence.
(xxi) DW.2 - Dr. Rama Jayaram is the Casualty doctor in the Victoria Hospital. She has deposed that on 10.5.1998 at 1.25 a.m., she examined Accused No.9 - David and Accused No.2 - Pushparaj and one Mr. Sundaraj and noted the injuries in accident register. Ex.D28 to Ex.D31 are the Accident Register Extracts. She also examined PWs.1 to 3.
28. Based on the oral and documentary evidence of the prosecution witnesses as well as the defence witnesses, the learned Sessions Judge proceeded to convict the appellants - accused for the offences punishable under Sections 143, 148, 448, 324, 428, 302 r/w 149 of IPC.
32
VII. CONSIDERATION
29. The case of the prosecution is that on 9.5.1998 at 6.30 p.m. when accused No.4 - Francis Kumar and his sister's husband - D. Francis while returning from their land near Joseph farm, the deceased Narayana and his servant Nagaraj picked up quarrel with them and exchange of words and hand blows in between them took place. Thereafter at about 10.30 p.m., when PWs.1 to 3 and others were in their house, Accused No.1 - Shantharaju (now dead) and his relatives and 10 others said to have trespassed into their house and assaulted PWs.1 to 3 and caused damage to the household articles and tractor and went away. After some time, one Electric Krishnappa (CW.29) had brought the deceased Narayana in the injured condition stating that near their land on the way from Thalaghattapura Police Station to the village in Maruthi omni van, accused persons attacked the deceased Narayana and caused injuries. Thereafter, the deceased Narayan was taken to Deepak Nursing Home for treatment and from Deepak Nursing Home, they were referred to Victoria Hospital and from Victoria hospital, they were referred to NIMHANS hospital and again 33 referred back to Victoria hospital and thereafter took treatment in Deepak Nursing Home as an in-patient. With regard to this incident, PW.1 lodged written complaint before the Police at 11.45 p.m. on 9.5.1998, upon which case in Crime No.79/1998 was registered for the offences punishable under the provisions of Sections 143, 147, 148, 448, 324, 307, 341 r/w 149 of IPC. Thereafter, the deceased died and after the death of the deceased Narayana, Section-302 of IPC was also included.
30. It is the case of the defence that in the same incident, the Accused No.2 - Pushparaj had also lodged a complaint stating that he and his friends by name Pratap, Sundar and David while returning from Thatagupe towards their house in Somanahalli near the house of PW.1 - Thimmaiah, PWs.1 to 3 and others with an intention to kill them assaulted with chopper and clubs and caused serious injuries to them and accordingly, Accused NO.2 - Pushparaj had lodged complaint, upon which case in Crime No.80/1998 was registered for the offences under Sections 143, 147, 148, 323, 324, 307 r/w 149 of IPC.
34
31. It is also not in dispute that complaint lodged by PW.1 was registered as Crime No.79/98 and after investigation, the Police filed the charge sheet and thereafter, the case was committed to the learned Sessions Judge and numbered as S.C. No.231/98 c/w S.C. No.135/99 c/w S.C. No.212/99 and S.C. No.297/99. Crime No.80/98 arising out of the complaint lodged by Accused NO.2 - Pushparaj was numbered as S.C. No.76/2004. Both the complaints were arising out of the same incident. Unfortunately, two Investigating Officers conducted investigation separately and in the Crime No.79/98 arising out of the complaint lodged by PW.1, the Police filed the charge sheet and in Crime NO.80/98 arising out of the complaint lodged by Accused No.2 - Pushparaj, the Police filed the 'B' report.
32. Ex.P1 - complaint lodged by PW.1 - Thimmaiah depicts that on 9.5.1998 at about 10.30 p.m. after finishing dinner, when himself, his wife - Chikkamuniyamma (CW.4) , his sister-in-laws - Seethamma (CW.6) and Hanumakka (CW.5), his brothers - Hombalaiah (PW.3) and Doddavenkatappa (PW.2) were sitting and talking in the house, Accused Nos.1,13 and 14 and ten others 35 forming an unlawful assembly holding deadly weapons - iron rod, club, cycle chain trespassed into the house, asked for the deceased Narayana complaining that inspite of telling him not to fix electric fuse, he has fixed fuse in his land. So scolding the deceased Narayana, Accused No.1 - Shantharaju, his sons and others, who have accompanied him, assaulted PWs.1 to 3 with club and iron rod and destroyed the household articles like TV, wall clock, small lamp, chair, radio and also tractor parked in front of the house. Knowing the incident, when the deceased Narayana was returning to home alongwith Nagaraju and Kumar in the car bearing Regn. No.KA.01.N.687, on the way when they were near the land of PW.1, accused persons obstructed and assaulted the deceased Narayana with an iron rod, club, cycle chain on head, eyes, chest, nose and legs and caused serious injuries and damaged the car. On hearing the incident, One Shivakumar from Kaggalipura took all of them in his car and admitted to Bangalore hospital. The complaint was registered on 9.5.1998 at about 23.45 hours for the offences punishable under Sections 143, 147, 148, 448, 427, 324, 307, 341 r/w 149 of IPC. Admittedly, the said Shivakumar, who has taken the injured to the hospital, has not lodged the complaint though he 36 went to the Police Station. The said Shivakumar has also not been examined before the Court. It is also alleged that counter-case is an after thought. The said aspects have not been considered by the learned Sessions Judge in the proper perspective.
33. This Court being the appellate court, in order to re- appreciate the entire material on record, it is relevant to consider the evidence of some of the important prosecution witnesses.
(i) PW.1 in the cross-examination, has admitted that at about 10.30 p.m. on the date of the incident, 18 persons trespassed into their house and except 3 persons, he is not aware of any other persons. He also admitted that the Accused No.1, who was residing in his village and his sons - Pushparaj and Ravi are known to him. He also admitted that there is a delay in lodging the complaint as his brother - the deceased Narayana reached home after about 45 minutes to one hour. According to PW.1, the deceased Narayana was brought in a scooter by one Krishnappa (CW.13). But, the said Krishnappa has not been examined before the Court. PW.1 further deposed that they were in the hospital for about 15 minutes and thereafter, the written complaint as per Ex.P1 was filed and he is not aware with regard to the exact time of 37 lodging the complaint. He also admitted regarding the delay in lodging the complaint. He also admitted that Accused No.18 is son of one Narayanagowda from the same village and is far related to him and Saraswathi is the daughter of Narayanagowda. He also admitted that there was a complaint by Saraswathi against him and Narayana and they have been acquitted in the said case. He also admitted that Narayanagowda opposed the deceased Narayana in the panchayath elections and succeeded.
(ii) PW.2 - Doddavenkatappa deposed that Accused Nos.1 to 3 and 18 persons came to his house on the date of incident and except Accused Nos.1 to 3, 8, 13, 16 and 17, he could not identify others. In the cross-examination, he has admitted the counter- case lodged against them by the accused persons. He further deposed that 5 to 6 days, he has not informed the incident to anybody.
(iii) PW.3 - Hombalaiah has deposed that he could not identify any of the accused persons except Accused Nos.6,8 and 13. He also admitted in the cross-examination with regard to the counter-case filed against them by the Accused No.2 - Pushparaj. 38
(iv) PW.4 - Shanthappa also stated that he could not notice as to who assaulted whom since he was in frightened condition. In the cross-examination, he has admitted that he could not identify as to who has come to the house and could not say as to who assaulted whom. He admitted that before the lodging the complaint, the Police visited the spot and further stated that his memory is fade and could not identify the accused since nearly 11 years has elapsed from the date of the incident.
(v) PW.5 has admitted in the cross-examination that when the incident occurred at 10.30 p.m, the deceased Narayana was in the Police Station. The counter-case was also admitted by him. PW.5 also admitted that while going to the hospital, he went to the Police Station also. He also admitted that nowhere it is stated in the hospital about the person who assaulted. After six days of the incident, he has given the statement to the Police. He also stated that he could not identify as to who assaulted whom since the incident took place 10 years back and his memory is fade. 39
(vi) PW.8 in his examination-in-chief has stated that he could not identify the accused persons and also as to who assaulted the deceased Narayana. In the cross-examination, he has admitted that there was previous quarrel between PWs.1 to 3 and the Accused No.1 and stated that they have lodged the complaint in the Police Station and went to the hospital. He further deposed that he has seen the accused for the first time in the Court. The admissions in the evidence of PWs.1 to 5 and 8 has not been considered by the learned Sessions Judge in the proper perspective while passing the impugned judgment of conviction and order of sentence.
(vii) PW.11 -Dr. Anand has deposed that since 1992, he has been working as Professor at Kempegowda Institute of Medical Sciences and on 15.5.1998, he received a requisition from the Circle Inspector of Police, Horahalli Circle to conduct the post- mortem on the dead body of the deceased Narayana, aged about 42 years. He conducted the post-mortem examination on the same day between 12.00 noon and 1.30 p.m. On external examination, he found rigor mortis all over the body and post 40 mortem stains on the back of the body. He found following external injuries:
1. Sutured wound over the top of the head on the right side 4.5cms.
2. Laceration over the root of the nose on the left side 1.5 cms x 1cms x skin deep.
3. Left upper lacerated in the middle 0.5cms x 0.5cms.
4. Three linear abrasion on front of the right side chest 9.0cms x 0.5cms each covered with brown scab.
5. Abrasion on the left side front of the chest in the upper part 3x0.5 cms covered with brown scab.
6. Abrasion on the left side front of the chest in the upper part below the neck 4 x 5 cms covered with brown scab.
7. Abrasion on the lateral aspect of left arm on 5 x 1.5 cms covered with brown scab.
8. Abrasion over the back of abdomen on the left side 6x2 cms covered with brown scab.
9. Abrasion over the back of left hand 1 x 0.5 cms
10. Contusion over the lateral aspect of the right arm 20 x 8 cms.
11. Abrasion voer the lateral aspect of the middle of right arm 1.5 x 0.5cms brown scab.41
12. Sutured wound over the dorsal aspect of the right index finger 3 cms.
13. Abrasion over the medial aspect of the left knee 2 x 1.5cms.
14. Elastocrape bandage present over right fore arm and hand on removal of the bandage hand is swollen.
15. Plaster of paris cast present over right leg and foot.
16. On removal of the cast ankle and foot are swollen.
The doctor (PW.11) further stated that on dissection, he found the following internal injuries.
1. left temporalis muscle was contused
2. brain was edematous.
3. 4,5 & 6 ribs on the left side fractured in the mid ancillary lines.
4. 7 to 10 ribs on the left side fractures in the postural angle
5. left side pleural cavity contained blood 200ml.
6. Right sternocleidomastoid muscle was contused
7. Right lung middle lobe was adherent to chest wall.
8. Left lung both lobes lacerated.
9. Liver, kidney and spleen were paled 42
10. Distal Phalanax of right middle finger was fractured.
11. Right fibula was fractures at the lower 1/3rd. The doctor (PW.11) opined that the death was due to respiratory failure as a result of complication of injuries sustained.
In the cross-examination, doctor (PW.11) has admitted that external injuries 4 to 9, 11 & 13 are almost healed. He further admitted that except injury Nos.1 and 12, all other injuries are not surgically attended, but they are only treated. Before issuing the post-mortem report, he has secured the treatment extract from the Bangalore hospital. He further stated that as per the case sheet, the patient was under respiratory problem. The witness volunteers that respiratory failure in this case was due to the injuries caused to the ribs and lungs and he could not say as to what was the cause for complication. The said material aspects of medical evidence are also not considered by the learned Sessions Judge while passing the impugned judgment of conviction and order of sentence against the accused persons.
43
(viii) P.W.13 - V. Shekhar, who was investigating officer, has deposed that he was working from December 1995 to July 1998 in Thalghattapura Police Station as Circle Inspector of Police. On 15.5.1998, the injured Narayana was taking treatment in Bangalore Hospital and on the information received about his death, he took charge from P.W.12 and continued the investigation. Accordingly, he visited the Bangalore Hospital and drew the inquest panachanama in presence of the witnesses as per Ex.P.4, recorded the statements of the witnesses - C.Ws.16 and 28 and P.Ws. 5 and
8. Thereafter, he sent the dead body of the deceased to Kims Hospital for postmortem report. On the same day he went to Somanahalli village and recorded the statements of P.Ws.1 and 3. On 16.5.1998, he recorded the statements of C.Ws.4 and 6 and P.Ws.2 and 4. On 17.5.1998 he went to Somanahalli village and seized the blood stained clothes kept in the house of accused No.1 and drew panchanama as per Ex.P.9 and seized the material objects - M.Os.1 to 9 and 13. He has put his signature at Ex.P.9(a) Accordingly, on 21.5.1998, he sent the seized material objects to Forensic Science Laboratory and on 25.5.1998, recorded the statement of C.W.34 and received the postmortem report on 44 30.6.1998 as per Ex.P.5. On 20.7.1998, he has transferred the file to C.W.41.(P.W.15). In the cross-examination, he has admitted that he had seen the case and given the evidence. He recorded the statement of P.Ws. 5 and 8 for the first time at the time of inquest panchanama. He has admitted that in Ex.P.6 - the requisition in Form No.146 sent to the doctor by the Investigating Officer except mentioning the name of accused No.1, there is no whisper about other accused persons. It is also admitted by him that he recorded the statement of P.W.3 for the first time; He has not deposed that P.W.3 had earlier given his statement; He has recorded the statement of P.W.2 for the first time on 16.5.1998. Admittedly Medico Legal Case registers from the concerned hospitals viz., Deepak Nursing Home, Victoria Hospital, NIMHANS, Victoria Hospital were not produced from the concerned hospitals and the concerned doctors are also not examined from the said hospitals. He has further deposed that at the time of drawing Ex.P.4, panch witness P.W.5 had given his statement as per Exs.D.1 to 4. P.W.5 and 8 have not deposed that as there was street light, they had identified the accused. He also admitted filing of the counter case by the accused persons against P.W.1 to 9 and others. He does not 45 know whether accused No.2 Pushparaj, accused No.9 - David and Sundar were injured or not in Crime No.80/98. He did not take any Xerox copy of the case. According to him, it is not correct that one investigating officer should be appointed to investigate a case and counter case. As far as statement of P.Ws.2 and 4, he does not know how accused Nos.2 and 9 and Sundar sustained injuries. He has denied the suggestion that he had obtained the wound certificates with regard to accused Nos.2, 9 and Sundar. He does not know whether Thalghattapura Police had sent accused Nos.2, 9 and Sundar to Victoria Hospital for treatment. He has denied the suggestion that in order to suppress the truth, he has not taken the counter case.
(ix) P.W.15 - K.V. Puttathimmegowda - Investigating Officer, who further investigated the case has deposed that he has been working from 20.7.1998 to 2000 as Circle Inspector of Arohalli Circle and Thalghattapura Police Station was within his jurisdiction. He had taken charge from P.W.13 on 21.7.1998. Accordingly, further statements of C.Ws.9 to 13 and P.W.8 were recorded. On 22.7.1998, the car bearing registration No. KA 03 3652 used by the 46 accused for commission of offence was seized in front of Thalghattapura Police Station as per Ex.P.2(c) and accused No.20 is the owner of that car. He has received the wound certificates of P.Ws.1 to 3 and deceased Narayana from the Deepak Nursing Home as per Ex.P.11 and 14. Accordingly, he filed the split up charge sheet on 7.8.1998 and on 18.2.1999, accused Nos.1 to 4 surrendered before the Court and he took them into custody on 23.2.1999. Thereafter, they were brought from the Central Jail to Thalghattapura Police Station for recording their voluntary statement and filed additional charge sheet in C.C.No. 222/1999. In the cross-examination, he has admitted that case and counter case have to be investigated by the same investigating officer and has not explained how P.Ws.1 to 4 and accused Nos.2, 9 and Sundar sustained injuries. He has denied the suggestion that he has taken any case register from the Bangalore Hospital and has sent the same to the doctor, who conducted the postmortem examination. He has admitted that he has not enquired whether deceased Narayana had taken treatment at Bangalore Hospital during those four days. He has denied the suggestion that due to negligence of the doctors at Bangalore Hospital, deceased Narayana 47 succumbed to the injuries. He has not enquired with the hospital about the doctor, who treated the deceased Narayana or what was the cause for his death. He has mentioned names of the doctors of the Bangalore Hospital who had treated the deceased as witnesses in the charge sheet. He has not produced any document from Raj Nursing Home. Doctor Santhosh from Deepak Nursing Home was not examined. He has further admitted the suggestion that iron rod and club i.e., M.O.11 and 12 were not sent to Forensic Science Laboratory and has denied the suggestion that P.W.8 giving the statement that he had seen the accused persons in presence of the car lights or street lights. The said material evidence of P.Ws.13 and 15 has not been considered by the learned Sessions Judge while passing the impugned judgment of conviction and order of sentence.
(x) P.W.17 - Chowdappa, the Assistant Sub-Inspector of Police of Thalgattapura Police Station, who was the Station House Officer, registered the case on 9.5.1998 as per the Ex.P.1 - complaint and registered the FIR as per Ex.P.10. He has deposed that he went along with Head Constable to the spot and as it was night, he could not conduct the spot mahazar. Then he visited the 48 Victoria Hospital where the injured person was not in a position to make statement. Therefore, he returned to the Police Station. On the next day i.e., on 10.5.1998 at 11.00 a.m., he visited the spot and recovered the material objects i.e., clubs and glass piece and arrested accused No.13, 8, 6, 7 and 9 and recorded their statement. He recorded the statements of C.W.5 and 6 in whose presence the clubs and glass pieces were seized, but they were not examined. He conducted enquiry from 9.5.1998 to 11.5.1998, but not recorded the statement of any of the prosecution witnesses. In the cross-examination, he has admitted the filing of counter case by accused No.2 and further deposed that he did not record the statement of the witnesses on the night of the incident. He has denied the suggestion that after filing of the complaint by P.W.1, he has not registered the same. He has further admitted that when he visited the hospital, accused No.2 was taking treatment in the Victoria hospital and his name was also mentioned in the Station House Diary which was recorded on 9.5.1998 showing him as accused No.2 and he does not know the reason why there is delay in registering the case. He has further admitted that he was not aware of lodging of complaint in Crime No.78/98 for the offences 49 punishable under Sections 341 and 307 r/w 34 IPC., on 9.5.1998 at 6.00 p.m., by the injured persons in the incident i.e., D. Francis and Francis Kumar and the said matter written in the case diary from 9.5.1998 and 10.5.1998. He was not aware about D. Francis Kumar sustaining severe injuries and sending him to the hospital for treatment from the police station through memo. He has admitted that Francis Kumar was arraigned as accused No.4 in the present case. He has not conducted the enquiry since 11.5.1998 and even after knowing about filing of case and counters case - Crime Nos.79/1998 and 80/1998, he has not conducted the enquiry together. He has further deposed that he was not aware that on 9.5.1998 at about 10.30 when Pushparaj - accused No.2, David and Sundar were going towards their houses from the Bus stand and when they were in front of the house of P.W.1, P.Ws.1 to 3 and their alliances i.e., Pushparaj, David and Sundar obstructed them and committed assault on them. He has denied the suggestion that in order to cover up the assault, on 10.5.1998, P.Ws.1 to 3 have filed the present case. He further has admitted the suggestions that for the first time on 11.5.1998, that names of accused No.13 Dayalu, accused No. 8 Chinnappa, accused No.6 Martin Raja, 50 accused No.7 Arogyaswamy and accused No.9 -David were arrayed as accused persons in the remand application, he not recording the statements of any of witnesses - P.Ws. 1 to 3 till 11.5.1998 and also statement of P.W.5 that there was street light as per Ex.P.3. He further deposed that Exs.P.11 to 14 are the wound certificates issued by the Doctor Santhosh Kumar of Deepak Nursing Home, who has not been examined. The said material evidence has not been considered by the learned Sessions Judge before passing the impugned judgment and order of conviction.
(xi) P.W.18 - Doctor Ravishankar has deposed that from 1993, he has been working as Consultant Surgeon in Deepak Nursing Home. He knew Santhosh Kumar since he was working as Casualty Consultant in the Nursing Home and he can identify his handwriting and signature and accordingly, he has identified the same at Exs.P.11 to 14 - wound certificates and signature found on the said certificates as that of Santhosh Kumar. In 1998, Santhosh Kumar left the Nursing Home and he was not aware where he went and cannot be expected that he would not be available. He has identified his signatures at Exs.P.11(a), P.12(a), 13(a) and 14(a). 51 In the cross-examination, he has admitted that on 10.5.1998, he was on duty in the Deepak Nursing Home and has not produced any document. He further deposed that as on the date of the incident, i.e., 9.5.1998, Dr. Santhosh Kumar has worked only for one month. He has admitted that as on 31.7.1998, Dr. Santhosh Kumar was not working in the said Nursing Home; Police have not shown any weapons in order to obtain his opinion; since the injured persons had taken treatment before coming to Deepak Nursing Home, the doctors in Casualty had no opportunity to see the fresh injuries/wounds; and nature of the wound changes after some time and after taking treatment; Further the cause of injuries sustained as per Exs.P.11 to 14, are not due to hit by a round iron rod and clubs; there is possibility of causing injury No.1 as mentioned in Ex.P.11, if a person falls on the hard surface, and he is not in a position to say by using which weapon, injury Nos.2 and 3 are caused. He also admitted that as per Ex.P.13 - wound certificate, there is no CT scan report with regard to injury No.3 and no X-ray report for the fractures mentioned in Exs.P.11 and 14. He does not know whether the injuries mention in Ex.P.11 is based on the inquest report from the Police. He admits that according to the 52 Medical Manual, MLC Register should be maintained, but has denied that Exs.P.11 to 14 are issued on the request of the Police and direction of the Hospital Authority. In view of the categorical admission made by P.W.18, who has not treated the injured persons and who is the Consultant Surgeon of the Deepak Nursing Home, who wanted to identify the wound certificates - Exs.P.11 to 14 issued by Dr. Santhosh dated 31.7.1998, that as on date, Dr. Santhosh was not available in the hospital and was not working in the hospital, clearly depicts that the wound certificates Exs.P.11 to 14 issued by Deepak Nursing Home is doubtful as Dr. Santhosh, who had treated the injured and issued wound certificates, was not examined. The said material aspects has not all been considered by the learned Sessions Judge while passing the impugned judgment and order of conviction.
(xii) D.W.1 - Dr. Ramajayaram, examined on behalf of the defence has deposed that during the years 1995 to 1998, he had worked as Deputy Chief Medical Officer in the Victoria Hospital. When he was working as Casualty Medical Officer in the night shift between 8.00 p.m. to 8.00 a.m. on 9th and 10th of May, 1998, at 53 about 1.25 a.m., he examined a patient by name David (accused-9) from Kamanahalli village, who had come with a history of assault on him on 9.5.1998 at 10.00 p.m. by a group of persons by name Thimmaiah, Hombalaiah, Narayana and Chikkavenkata (P.W.1 to 3 and deceased) and his son with knife, stone and wooden rod at Somanahalli. He was conscious but restless and had sustained the following injuries:
i) a contusion with hemotoma over the dorsal aspect of left thigh about 8 inches x 6 inches, skin bluish in colour;
ii) a contusion with hemotoma over the left infra scapula region of size 6 inches x 6 inches, skin bluish in colour and tenderness;
and he referred the said injured to the surgical ward for further treatment and the injured person was accompanied by the Police Constable Buckle No.791 of Thalghattapura Police Station. The accident register is marked as Ex.D.28. He has further opined that contusion could be caused due to assault with club. He further deposed on 10.5.1998 at about 1.35 a.m., he examined one patient 54 by name Pushparaju - accused No.2 from Kamanahalli with history of assault on him on 9.5.1998 at 10.00 p.m. by a group of persons by name Thimmaiah, Humbalaiah, Narayana (deceased) Chikkavenkata and his son (P.W.1 to 3) with knife, stone and wooden rod at Somanahalli. He was conscious but restless and had sustained the following injuries:
i) A sutured wound over the right parital region of size about 2 inches in length and fresh;
ii) A sutured wound over the left occipital region of size about 2 inches in length and fresh;
iii) A sutured wound over the dorsal aspect of left shoulder joint vertically of size about 3 inches in length and fresh;
iv) A lacerated wound over the dorsal aspect of left fore arm of size 1 inches x ¼ inch x skin deep fresh;
v) Contusion with hematoma of both lips defused skin bluish in colour;
He referred the said patient for surgical ward for further treatment, who was accompanied by the Police Constable Buckle No.791 of 55 Thalghattapura Police Station. He had brought a Xerox copy of the accident register marked as Ex.D.29. He has further opined that injuries 1 and 2 stated supra would be caused by assault with chopper and injury Nos.3 to 5 could be caused as a result of assault with club and stones. With regard to nature of injuries, he has deposed that injury No.1, 3 and 5 were simple, but regarding Injury No.4, opinion had to be obtained from the Orthopedic Surgeon. He had also issued would certificate Ex.D.30 and further on the back side of Ex.D.30, Orthopedic Surgeon has opined that, injury No.4 as grievous in nature.
(xiii) D.W.1 further has deposed that he also examined Sundar Raj (accused No.5) of Kamanahalli village, who was brought by the Police Constable with the history of assault and he was found with the following injuries:
i) A lacerated wound over the right post auricular region of size 2 ½ inches by 1 inch bone deep;
ii) Contusion with hematoma over the right shoulder joint defused skin bluish in colour and tenderness present;
56Further the patient was also referred to surgical ward for further treatment. He entered the same in the accident register as per Ex.D.31 and his signature was marked as Ex.D.31(a). The cause of Injury No.1 could be of blunt edge chopper, injury No.2 by assault with club and both the injuries were simple in nature. He has further deposed that accused - Pushparaj (accused No.2) was examined by the witness with reference to the wound marks found on the head, shoulder and left forearm and that the injuries mentioned in the above referred certificate were corresponding. In his cross-examination, he has deposed that Ex.P.1 the complaint cannot be treated as the first information regarding a case. He has denied the suggestion that injury Nos.1 to 5 mentioned in Ex.P.29 may be caused, if a person falls on the hard surface and admits that injuries shown in Ex.P.31 may be caused, if a person comes in contact with an hard object. D.W.1 has further deposed that One Narayana s/o Venkategowda of Somanahalli Village was brought to the hospital at 1.45 a.m. on 10.5.1998 with a history of assault. The injuries found at the time of his examination are noted in the accident register, marked as Ex.D.33 and his signature is marked as Ex.D.33(e). Though nothing has been elicited in his cross- 57 examination to disbelieve his evidence, the learned Sessions Judge has not considered the said material evidence on record before passing the impugned judgment of conviction and order of sentence.
34. It is relevant to note that there are so many inconsistencies in the evidence of the prosecution witnesses. First of all it is an admitted fact that there is a delay of 21 hours in registering the complaint for which there is no explanation offered by the prosecution and on the same incident, two complaints were lodged by the parties, both FIRs., are one sided and are not disclosing the real truth. If only one investigating officer had conducted the investigation on the complaints lodged by two groups for the same incident, the truth would have been revealed. Unfortunately both the complaints are lodged on the same day at the same time, but two investigating officers have conducted the investigation separately and in one case, 'B' report and in another final report is filed. P.Ws.1 and 17 have admitted in their evidence that there is a delay in lodging the complaint. Secondly, the admission made by the investigating officers clearly depict that the 58 investigation is tainted from the beginning till completion of the evidence. The oral and documentary evidence on record do not show beyond all reasonable doubt the identity of persons, who assaulted the deceased and the same is not established by cogent evidence though the Consultant Surgeon of Deepak Nursing Home, who has issued the wound certificates - Exs.P.11 and 14 has not treated the patients including the deceased, but as admitted by him, they were examined by the Doctor Santhosh, who has not been examined as a witness in this case. The hospital where the injured persons had taken treatment has not sent the register of the medico legal case. The deceased has died after five days from the date of admission to the hospital and cause of death was due to respiratory failure as a result of complication of injuries as can be seen from the opinion of the doctor in Ex.P.5 - postmortem report and it does not amount to murder. Dr. Anand K., P.W.11, the Professor and Head of the Department of Forensic Medicine, Kempegowda Institute of Medical Sciences, who conducted the postmortem examination on the deceased has opined that all the injuries sustained by the deceased were almost healed. He has further deposed that except injury Nos.1 and 12, all other injuries 59 were attended non-surgically, but were only treated. Injury Nos.1 and 12 were also not surgically attended. Before issuing the postmortem report, he had secured the treatment extract from the Bangalore Hospital. As per the case sheet about 12 to 14 patients were under respiratory problem. He voluntaries that respiratory failure was due to the injuries caused to the ribs and lungs and he is not in a position to say what was the cause for the complication. As per Ex.P.5 - postmortem report and Ex.P.11 - the Wound Certificate, two days and five days are contrary to the death memo dated 15.5.1998 issued by the Bangalore Hospital Ex.P.8. All these material aspects have not been considered by the learned Sessions Judge while passing the impugned judgment of conviction and order of sentence.
35. As per the Police Manual, two investigating officers are not permissible to conduct the investigation in case and in cross case (counter case) out of the same incident in view of the provision - 1179 of the Karnataka Police Manual, which reads as under:
60
"1719. (1) In a factious rioting, a Police officer should not content himself with laying charge sheets against both the contending parties, making the prosecution witnesses in one case the accused in the other and vice versa, and put forward the inversions to the court without any attempt at finding out the truth. If complaints of the offence of rioting containing two divergent versions are given by the parties, it is the duty of the investigating Officer to find out which case is true and charge it. The easier course of referring both the case and the counter case as unbeatable should not be adopted. An impartial efficient and painstaking investigation should invariably disclose the true facts of any occurrence. The laying of charge sheets in both the case and the counter case should be resorted to only in exceptional cases or where, as stated below, both the parties are guilty of aggression and lawless acts.
2. The principles set forth above apply mutatis nutandis to all tension and clashes between parties, whether they be due to faction or communal or political differences. In such cases, the police should remain completely neutral, but 61 that does not mean that they should not make a distinction between the aggressors and the victims. When a group takes the law into its hands with a view to imposing its will or programme upon those opposed to it, the latter have a right conferred upon them by law to act in defence of their lives and properties. Whenever trouble occurs or is anticipated between two parties, the police should distinguish between the aggressor and the victim in the matter of action under preventive or specific sections of law, the leaders of both the parties being charged in specific cases or put up under security sections only where there is evidence to show that both the parties have been committing aggression. Where one party has been forced to act in self-
defence, only the aggressive party should ordinarily be proceeded against."
36. It is the duty of the investigating officer to find out, which case is true and file the charge sheet. Admittedly, in the present case, out of the same incident, two complaints are lodged on the same day at the same time, but unfortunately, two separate investigating officers have conducted the investigation and filed the charge sheets, which is contrary to law. Our view is fortified by the 62 dictum of the Full Bench decision of this Court in the case of State of Karnataka by Circle Inspector of Police -vs- Hosakeri Ningappa and Another reported in ILR 2012 kar. 509 wherein it has been held that the procedure to be adopted in case and counter case is that the investigation should be conducted by the same Investigating Officer and the prosecution should be conducted by two different Public Prosecutors. The trial should be conducted by the same Court. After recording the evidence and after hearing the arguments, the judgment should be reserved in one case and thereafter, the evidence should be recorded and the arguments should be heard in the other case. It is needless to observe that the arguments in both the matters shall be heard by the same Learned Judge. The judgments should be pronounced by the same Judge simultaneously i.e., one after the other. In deciding each case, the Trial Judge can only rely on the evidence recorded in that particular case and the evidence recorded in the cross case (or counter case) cannot be looked into. The Judge shall not be influenced by the evidence or arguments in the cross case.
Paragraphs-5 to 8 of the said judgment read as under:63
"5. Case and counter case (cross cases) are, for all purposes different or conflicting versions of one incident. Reading of the aforementioned judgments makes clear that, in order to avert the danger of an accused being convicted before his whole case is before the Court and in order to deter conflicting judgments being delivered upon similar facts, the consistent and salubrious practice adopted by the Courts in India right from 1929 is that the cross cases shall be tried simultaneously by the same Judge. After recording evidence and after hearing the arguments, the Judgment should be reserved in one case and thereafter the evidence should be recorded and the arguments shall be heard in another case. Arguments in both the cases shall be heard by the same Judge. The judgments should be pronounced by the same Judge one after another. It is also settled position in law as laid down by the Supreme Court in the aforementioned judgments that in deciding the case and the counter case, the Trial Judge can only rely on the evidence recorded in that particular case and the evidence recorded in the cross case cannot be looked into, nor can the Judge be influenced by the arguments in the cross 64 case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence and the arguments in the cross case.
6. It is also relevant to note that the investigation is to be conducted by the same Investigating Officer and the prosecution should be conducted by two different Public Prosecutors. The Government of Karnataka has issued the law Circular dated 24.9.1982 bearing No. 4836 and the law Circular dated 12.11.1982 bearing No. 4839, stipulating that the same Investigation Officer shall investigate case and counter case.
7. However, the Division Bench of this Court in Abdul Majid Sab v. State of Karnataka by Ripponpete Police (Supra) has observed thus:
"Para-27: It is well-settled principle in a case and a counter the same I.O. should investigate both the cases and should file final report. The different prosecutors should conduct prosecution, the same Judge should try the cases simultaneously and render separate 65 judgments. It is a judicial dicta that the Court should not read/get influenced by the evidence recorded in the other case, unless the said material in the other case is marked as an evidence in the case in question. To say that the Court should not read/influenced by the evidence recorded in the other case under all circumstances would be a perverse view and runs counter to the logic of holding simultaneous investigation by the same I.O. and trial by the same Judge. Otherwise, it is impossible for the Judge to appreciate the guilt of the accused to find out whether both are aggressors and both are guilty of indulging in free fight or one of them is an aggressor and the other caused injuries on the accused in exercise of right of private defence."
(Emphasis supplied by us) The aforementioned observations made by the Division Bench in the case of Abdul Majid Sab, in 66 our considered opinion, run contrary to the dictum laid down by the Supreme Court in various judgments cited supra, including the cases of Nathi Lal v. State of U.P. (Supra), Sudhir v. State of M.P. (Supra), Mittulal v. The State of M.P. (Supra) and Kuldip Yadav v. State of Bihar (Supra).
There is no statute governing the procedure to be adopted in case and counter case or cross cases. However, the Supreme Court has laid down the procedure for trial in such matters. The Legislature ought to remedy the defect by enacting the procedure in that regard. However, the Judge made law relating to procedure mentioned supra is being followed since 1929 till this day. The law declared by the Supreme Court binds all the Courts in India under Article 141 of the Constitution of India. Hence, the observations made by the Division Bench in the case of Abdul Majid Sab (quoted supra) do not lay down good law on the point, inasmuch as, the observations run contrary to the well established principles of law as laid down by the Supreme Court from time to time.
67
8. The Supreme Court has described the procedure and practice of simultaneous trial of case and counter case as "fair procedure", "salubrious practice", "salutary practice", "generally recognised rule", "proper procedure to adopt" etc., in various judgments. The procedure to be adopted by the Courts while dealing with the case and counter case is the Judge made procedure and not a statutory procedure. The question, however, is whether the wrong procedure adopted by the Learned Trial Judge vitiates the trial, irrespective of the fact whether prejudice has been caused to the accused or not."
37. Admittedly, in the present case as already stated supra, two investigating officers have conducted the investigation on the two complaints lodged separately on the same incident though two different public prosecutors have conducted the prosecution. The trial was conducted by the same Court in the case and counter case and proceeded to rely on the evidence adduced by the parties. If the case and counter case are not tried simultaneously , the proceedings ipso facto do not get vitiated as contended by the learned State Public Prosecution. But where the irregular procedure 68 adopted by the trial Court has caused prejudice to the accused and has occasioned failure of justice, the proceeding and the trial vitiates. Otherwise, the proceedings are protected under Section 465 of the Code of Criminal Procedure. In the present case, the complaint made by accused No. 2 Pushparaj ended in a 'B' report filed by the investigating officer and the same was protested and was filed under Section 200 Cr.P.C. and subsequently, it was registered as a criminal case, committed to the Sessions Court and it was numbered as S.C.No.56/1998. It was tried by the same learned Judge. Therefore, the case filed by P.Ws.2 to 6 is treated as cross case (counter case) and the learned Judge shall have to consider each case independently without being influenced by the admissions or omissions of other case as held by the Full Bench of this Court stated supra. As such, the learned Sessions Judge while passing the impugned judgment of conviction and order of sentence has not considered the said procedural aspects.
38. At this stage, it is also relevant to consider the provisions of Section 149 of the Indian Penal Code - unlawful assembly. The basic element of constituting an unlawful assembly is the number of 69 persons composing the assembly which should not be less than five persons. It is the duty of the police officer while investigating a case and a counter-case to investigate both the cases as provided under Chapter - XII of the Code of Criminal Procedure and after completing the investigation, assess the material collected to find out whether on the material collected, there is a case to place the accused before a Magistrate for trial, and if so, take the necessary steps for the same, by filing a charge- sheet under Section 173 of the Code of Criminal Procedure. There may be a case where it may happen that each party has committed the offence and that each party has overstepped the bounds of law and if the investigating officer on the assessment of the evidence reach such a conclusion, it is perfectly open to him to place charge sheet in both cases as there would be nothing incompatible in them. But, on the other hand, if the investigation reveals that if one case is true, the other must necessarily be false, then the police should file charge sheet in the case in which the investigation disclosed a case to place the accused before the Magistrate for trial and refer the other case to leave the aggrieved party to pursue the matter by him. Our view is fortified by the dictum of the Co-ordinate Bench of this Court in the 70 case of The State of Karnataka -vs- Balappa Bhau Vadagave and Others reported in ILR 1984 Kar. 21 wherein at paragraphs-70 to 72, 74 and 75, it is held as under:
" 70. A careful reading of all these rulings would reveal that it is the duty of the police while investigating a case and a counter-case to investigate both the cases as provided under Chapter XII of the Code and after completing the investigation assess the material collected to find out whether on the material collected, there is a case to place the accused before a Magistrate for trial and if so, take the necessary steps for the same, by filing a charge-sheet under Section 173 Cr. P.C. There may be a case where it may happen that each party has committed the offence and that each party has over-stepped the bounds of law and if the investigating officer on the assessment of the evidence reach such a conclusion, it is perfectly open to him to place charge-sheet in both the cases as there would be nothing incompatible in them. But on the other hand, if the investigation reveals that if one case is true, the other must necessarily be false, then the police should file charge-sheet in the case in 71 which the investigation disclosed a case to place the accused before the Magistrate for trial and refer the other case to leave the aggrieved party to pursue the matter by him. Judicial verdict is consistent in deprecating the conduct of the police in placing charge sheets in both the case and the counter-case, which are contradictory, in the sense, that if one is true, the other must necessarily be false, solely with a view to shirk their responsibility, being afraid of the possibility or probability of imputing partiality and for evading the same, filing charge-sheets in both the cases to appease both the parties leaving the matter to be decided by the court. In none of these rulings, investigation of the case and the counter-case by different officers is either indicated or suggested.
71. In the instant case, undoubtedly there was complaint by the deceased Kallappa's party and counter-complaint by the accused-party in respect of the same incident out of which two crimes had been registered and investigated by two different officers and after completing the investigation both the cases resulted in placing of charge- sheets against the accused-party in this case and 72 the deceased party in the counter-case. It is in the evidence of P.W. 19 that he recorded the oral complaint of A1 Balappa as per Ex. P. 29 in the course of the investigation of the crime registered on the complaint of P.W. 1 Kumar and handed it over to the S.H.O. Sadalaga to register a case and investigate. He also sent the injured accused to Sadalaga Medical Officer for further treatment. He has not investigated the truth or otherwise of the accused version of the incident as put-forth by A1 in his complaint, nor his evidence would show that he conducted the investigation in this case and verified the material collected, in the light of the accused version and in particular about the injuries caused to them in the same incident. He has merely stated that he received the injury certificate of the accused from the Medical Officer, Dattawad and after completing the investigation of the crime registered on the complaint of P.W. 1, he placed the charge-sheet against all the five accused in this case on 23-3-1981 citing deceased Kallappa's party as the prosecution witnesses.
72. As regards the counter case, obviously arising out of the complaint Ex. P. 29 of A1, there is a mere reference by the trial court in the course of 73 the judgment while dealing with the injuries sustained by A1 to A3 that the defence itself had explained the injuries sustained by the accused as it had to, so explain because of the peculiar defence taken in the counter-case, obviously by the prosecution witnesses in this case who were the accused in the counter-case. Thus it would appear that the case and the counter case arising out of the same incident in the instant case were investigated by two officers, independent of each other, each of whom after completing the investigation placed the charge-sheet in the respective cases, obviously with the dressed-up investigation, without verifying the truth or otherwise of the two versions of the same incident given by the deceased-party as well as the accused party and collected material in each of the cases in such a way to make out a case against the accused in each case so as to place both of them before the court for trial as if the case and the counter-case are two independent crimes although arising out of the same incident.
74. The question is whether this circular which was obviously based on the ruling of this court in Gooti Sannaiah's case (1976 (1) Kar. L.J. 10) is 74 based on the correct understanding of the legal position enunciated in the said decision. We have already referred to the legal position enunciated in the said decision and we are unable to find any support for the instructions issued to the police for conducting investigation by different officers in the case and the counter-case arising out of the same incident and placing final report after completing the investigation independent of each other by following the procedure contained in the circular instructions. In Gooti Sannaiah's case (1976 (1) Kar. L.J. 10), all that was emphasized by a Bench of this Court was the undesirability of placing charge-sheets in both the case and the counter-case by the same police of which, if one is true, the other is essentially false and prosecuting such contradictory cases one after another by the same prosecutor. This legal position as we found earlier, was enunciated as early as by the erstwhile High Court of Mysore in Gundi Giriyappa's case (18 Mys. L.J. 229). The same view was taken by the Madras High Court in Ramakrishnaiah's case (AIR 1954 Madras 442). The ratio of the Full Bench decision of the Kerala High Court in Augustine's case (1982 Cr. L.J. 1557) also falls in line with the ratio of the above 75 decisions. Neither we find any support for the proposition that separate investigating officers should investigate the case and the counter-case arising out of the same incident in any of the decided case, much less in the decision of this Court in Gooti Sannaiah's case (1976 (1) Kar. L.J.
10), nor under any of the provisions of the Code.
There cannot be any two opinions that the case and the counter case arising out of the same incident though registered in separate crime numbers, are not two independent cases but two versions of the same incident. For the purpose of investigation, both the complaint and the counter- complaint are registered separately but the truth or otherwise of the complaint and the counter-
complaint shall have to be verified by the same investigating officer, investigating both the crimes impartially and diligently and after completing the investigation, assess the material collected in both the crimes, form an opinion as to which of the persons in the complaint or the-counter-
complaint, as the case may be, have committed the offence and place the charge-sheet against such persons and refer the case in which he found no offence is made out, so that the concerned party may prosecute his complaint in a court of 76 law. However, we may emphasize that in appropriate cases, though such cases seldom occur, the investigating officer may file charge- sheets against both the parties as illustrated in Gundi Giriyappa's case (18 Mys. L.J. 229) to which a reference has been made earlier.
75. It is unfortunate that neither the Directorate of Prosecution which is in-charge of the conduct of the prosecution in the subordinate courts nor the State Public Prosecutor, who is representing the State in Criminal Cases at the High Court level, has so far perceived in these long seven years and taken any step to set right the wholly wrong and erroneous mode of conducting investigation in case and counter-case arising out of the same incident by different investigating officers, independent of each other and filing reports under Section 173 of the Code based upon the Law Section Circular No. 3989 dated 7-5-1977 referred supra for which we do not find any sanction or approval by any of the provisions of the code. We feel wonder how many roting cases involving case and counter-case ended in miscarriage of justice due to this mode of investigation by the police. We look askance at 77 the slackness on the part of the aforesaid agencies and also the wisdom of the authority responsible for the Law Circular which introduced the novel investigation in this State."
39. In view of the fact that as per Ex.P.1, the first complaint lodged by P.W.1 on 9.5.1998 registered at 10.30 p.m., the names of accused Nos.1, 13 and 14 and others were included in the FIR. The same was registered on 9.5.1998 at 23.45 hours as per Ex.P.10 and received by the JMFC at 9.00 p.m. on 10.5.1998. There is delay of 21 hours. The second complaint Ex.D.2 depicts that the incident occurred on 9.5.1998 at 10.30 p.m. and it was registered on 10.5.1998 at 12.15 a.m. The FIR with regard to first complaint was for the offences punishable under Sections 147, 448, 447, 323, 307, 341, 302 r/w 149 of IPC and for the second complaint except offence under Section 302 of IPC., all the offences are common as that of the first complaint. Both the complaints are received by the JMFC on 10.5.1998. It has to be kept in mind that there are two separate complaints lodged for the same incident, on the same day, at same time and in the same police station. As per Ex.P.11, the wound certificate dated 31.7.1998 issued by the 78 Deepak Nursing Home, the deceased Narayana Murthy was treated in the hospital on 10.5.1998 as in-patient for the injuries sustained by him due to alleged incident and was discharged on 12.5.1998 after two days. Injury Nos.10, 11 and 12 are grievous as per Ex.D.10 issued by the Doctor S. Lingaraj of Raj Nursing Home.
40. Admittedly, the Doctor Santhosh, who treated the deceased Narayana Murthy has not been examined as admitted by the Investigating Officer as well as P.W.18. Ex.D.10 - the wound certificate dated 16.3.1999 issued by Doctor S. Lingaraj of Raj Nursing Home clearly depicts that Narayana Murthy (deceased Narayana) was admitted to the hospital on 9.5.1998 at 7.00 p.m. with three injuries i.e., i) Swelling and tenderness on right eye; ii) blunt injury on left chest; and iii) blunt injury on left thigh; and has opined that injuries (i), (ii) and (iii) were simple in nature. Even the said doctor is also not examined by the prosecution. Ex.P.5 - the Postmortem report issued by the Doctor K. Ananda, Professor and Head of the Department of Forensic Medicine has opined that the death was due to respiratory failure as a result of "complication of injuries sustained"; the date of death was on 15.5.1998 and the 79 deceased was in the hospital for more than 10 days. In view of inconsistency in the wound certificate issued by the doctors and the postmortem report, serious doubt is created about involvement of the accused persons in the homicidal death of the deceased as alleged by the prosecution.
41. On careful reading of the evidence of the investigating officers and Ex.P.5 - the postmortem report, Ex.D.10 - the wound certificate and Ex.P.11 - another wound certificate, two views are possible. "It is well settled that there is no embargo on the Appellate Court reviewing the evidence upon which an order of conviction is based. The golden thread which runs through the web of administration of justice in criminal cases is that, if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent." The said aspect also has not been considered by the learned 80 Sessions Judge and as such, the impugned judgment and order of conviction cannot be sustained.
42. The case/counter case/cross case has been considered by the Hon'ble Supreme Court in the case of Sudhir and Others - vs- State of M.P. and Others reported in (2001)2 SCC 688 wherein at paragraphs-8, 9 and 10 has held as under:
"8. It is a salutary practice, when two criminal cases relate to the same incident, they are tried and disposed of by the same court by pronouncing judgments on the same day. Such two different versions of the same incident resulting in two criminal cases are compendiously called "case and counter-case" by some High Courts and "cross-cases" by some other High Courts. Way back in the nineteen hundred and twenties a Division Bench of the Madras High Court (Waller and Cornish, JJ.) made a suggestion (Goriparthi Krishtamma, In re [1929 MWN 881] that "a case and counter-case arising out of the same affair should always, if practicable, be tried by the same court; and each party would represent themselves as having been the innocent victims of the aggression of the other".81
9. Close to its heels Jackson, J., made an exhortation to the then legislature to provide a mechanism as a statutory provision for trial of both cases by the same court (vide Krishna Pannadi v. Emperor [AIR 1930 Mad 190 : 31 Cri LJ 461] ). The learned Judge said thus:
"There is no clear law as regards the procedure in counter-cases, a defect which the legislature ought to remedy. It is a generally recognized rule that such cases should be tried in quick succession by the same Judge, who should not pronounce judgment till the hearing of both cases is finished."
10. We are unable to understand why the legislature is still parrying to incorporate such a salubrious practice as a statutory requirement in the Code. The practical reasons for adopting a procedure that such cross-cases shall be tried by the same court, can be summarised thus: (1) It staves off the danger of an accused being convicted before his whole case is before the court. (2) It deters conflicting judgments being delivered upon similar facts. (3) In reality the 82 case and the counter-case are, to all intents and purposes, different or conflicting versions of one incident".
43. The Hon'ble Supreme Court while considering the procedure to be followed by the trial Court in cross cases in the case of Nathi Lal and Others -vs- State of U.P. and Another reported in 1990 (Supp) SCC 145 at paragraph-2 has held as under:
"2. We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be 83 looked into. Nor can the judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other."
44. The prosecution witnesses - P.Ws.1 to 5 and 8 have clearly admitted in the cross-examination that they were unable to identify particular accused persons, who were involved in the homicidal death of the deceased, which is a serious draw back in the case of the prosecution as held by the Hon'ble Supreme Court in the case of Balbir -vs- Vazir and Others reported in (2014) 12 SCC 670 wherein at paragraph-30, it is held as under:
"30. Another significant aspect of this case is the absence of identification parade. Persons who were named in the FIR and others, who had witnessed the incident at different stages did not know all the assailants but they claimed that they could identify the assailants. But the prosecution 84 failed to hold test identification parade. It is argued that identification made in court is sufficient. Reliance is placed on Malkhansingh [Malkhansingh v. State of M.P., (2003) 5 SCC 746: 2003 SCC (Cri) 1247] wherein this Court has held that substantive evidence is the evidence of identification in court. The test identification parade provides corroboration to the identification of the witness in court if required and what weight must be attached to the evidence of identification in court, is a matter for the court of fact to examine. There can be no dispute about this proposition. But in Malkhansingh [Malkhansingh v. State of M.P., (2003) 5 SCC 746 : 2003 SCC (Cri) 1247] this Court was dealing with a case of gang rape. This Court noted that courts below had concurrently found the evidence of prosecutrix to be implicitly reliable. This Court noted that the appellants raped the prosecutrix one after another. She was threatened and intimidated. All this must have taken time. This Court noted that it was not a case where the identifying witness had only a fleeting glimpse of the appellants. The prosecutrix had a reason to remember the faces of the appellants as they had committed a heinous offence and put her to shame. She had 85 abundant opportunity to note the appellants features and due to the traumatic experience the faces of the appellants must have been imprinted in her memory and there was no chance of her making a mistake about their identity. The observations of this Court will have to be read against the backdrop of these facts. Facts of this case are different. The incident does not seem to have lasted for a long time. The eyewitnesses were sitting outside the Satsang hall. It cannot be said that they had sufficient opportunity to see the faces of the accused who were on the run. In such a case failure to hold identification parade is a serious drawback in the prosecution case."
(emphasis supplied)
45. Considering the provisions of Section 96 of the Indian Penal Code with regard to failure to explain the injuries on the accused, the Hon'ble Supreme Court in the case of Rehmat -vs- State of Haryana reported in (1996) 10 SCC 346 wherein at paragraph-10 it is held as under:
"10. There is also another aspect which goes in favour of the appellant. Admittedly Padam Singh (PW 4) along with Vijay Singh had first gone to 86 the Primary Health Centre for medical help but he did not disclose the name of the assailant to the doctor. Ordinarily, in a medico-legal case, the doctor is supposed to write down the history of the injured but admittedly in this case, medical papers of Padam Singh (PW 4) do not indicate the name of the assailant. The names were disclosed only at the time when the complaint was recorded by SI Narain Singh at about 9.00 p.m. which was treated as a formal FIR. The learned counsel for the appellant, therefore, rightly urged that the appellant was later on implicated in the present crime at the instance of the complainant and his friends. It may also be stated that the prosecution case even otherwise appears to us improbable because Padam Singh (PW 4) claims to have got up early in the morning and seen the appellant running from the side of his room at about 3.30 a.m. In these circumstances, it is not possible to sustain the conviction of the appellant under Sections 307/393 of the Penal Code, 1860."
46. In the case on hand, the oral and documentary evidence on record depicts that the accused are not identified, as according to the complaint, there were 22 to 30 persons, who had 87 formed an unlawful assembly to commit the assault on P.Ws.1 to 3 and deceased Narayana. In the absence of any identity invoking the provisions of Section 149 of IPC., is bad in law. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Musakhan and Other -vs- State of Maharashtra reported in AIR 1976 SC 2566 wherein at paragraph-5, it is held as under:
"5. The appellants pleaded innocence and averred that they had been falsely implicated due to enmity and had not participated in the riot. Both the courts below have accepted the main facts leading to the occurrence as also participation of the appellants in the rioting. The Additional Sessions Judge as also the High Court, however, do not appear to have made a correct approach in examining the individual cases of the accused, particularly with reference to their actual presence or participation in the incident in question. It is true that having regard to the background against which the events took place all the incidents starting from the National Hotel and ending with the chawl of Jogendra Singh were parts of the same transaction, nevertheless they were separate incidents in which different members of the mob had participated. In these circumstances, therefore, without there being any direct evidence 88 about the actual participation of the appellants in all the incidents it could not be inferred as a matter of law that once the appellants were members of the mob at the National Hotel they must be deemed to have participated in all the other incidents at the Engineering College Hostel, Bharat Lodge and the chawl of Jogendra Singh. It is well settled that a mere innocent presence in an assembly of persons, as for example a bystander, does not make the accused a member of an unlawful assembly, unless it is shown by direct or circumstantial evidence that the accused shared the common object of the assembly. Thus a court is not entitled to presume that any and every person who is proved to have been present near a riotous mob at any time or to have joined or left it at any stage during its activities is in law guilty of every act committed by it from the beginning to the end, or that each member of such a crowd must from the beginning have anticipated and contemplated the nature of the illegal activities in which the assembly would subsequently indulge. In other words, it must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all these stages. Such an evidence is 89 wholly lacking in this case where the evidence merely shows that some of the accused were members of the unlawful assembly at one particular stage but not at another. In these circumstances, therefore, the accused who were not present or who did not share the common object of the unlawful assembly at other stages cannot be convicted for the activities of the assembly at those stages. In view of this error committed by the High Court it has become necessary for us to examine the evidence on the limited question as to which of the accused had actually participated in the incidents at the Engineering College, Bharat Lodge and the chawl of Jogendra Singh where acts of incendiarism had taken place. It is also common ground that the occurrence had taken place at night and the evidence of the witnesses identifying the accused had to be examined with great caution."
47. The inconsistent evidence of the prosecution witnesses about the assault and non-identification of the particular accused, who were involved in the homicidal death of the deceased and in view of the inconsistency in the medical certificates (wound certificates) issued by different hospitals as per Exs.D.10, Ex.P.11 90 Ex.P.5-the postmortem report and the absence of examination of the doctors to prove the said injuries, no reliance can be placed on the prosecution witnesses and the documents relied upon. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of State of Rajasthan -vs- Rejendra Singh reported in AIR 1998 SC 2554 wherein at paragraphs-7 and 8 it is held as under:
"7. It was submitted by the learned counsel for the State that as many as six witnesses were found injured and that would establish their presence at the place of the incident. In our opinion, this contention is of no help to the appellant because their evidence has not been discarded on the ground that they were not present. Their evidence was discarded because they were found not telling the truth before the Court. It was also submitted by the learned counsel that the evidence of PWs 1 to 4 stood corroborated by two independent witnesses, namely Ramjilal and Jeevan Singh. PW 8 Ramjilal had stated that he had gone to the spot on hearing the sound of a gunshot and tried to snatch away the gun from the respondent. But he 91 was contradicted by his police statement wherein he had not stated anything regarding snatching of the gun. This omission on such a vital point has to be regarded as a contradiction and it creates a serious doubt about the truthfulness of his version. PW 9 Jeevan Singh had stated that he had also rushed to the spot on hearing the sound of a gunshot. He further stated that he had made an attempt to save Harveer and in doing so, he had received an injury. He had not so stated before the police. This also shows that this witness had made a material improvement before the Court in order to make his evidence acceptable.
8. All the witnesses had categorically stated that they had not beaten the respondent and seen any injury on the accused. But the evidence establishes that the respondent had two contused lacerated wounds: one on his face and one on his head. The injuries were bleeding injuries and visible and yet the witnesses stated that they had not seen any injury on the person of the respondent. That would mean that neither the family members of Harveer nor the two independent witnesses were willing to give a true version and had tried to suppress the part played 92 by some of them which had resulted in causing injuries to the respondent. The High Court was therefore, justified in not placing reliance on their evidence."
48. Admittedly, there is a delay in lodging the first information report which was prepared after reaching the spot and after due deliberation, consultation and discussions. As such, it cannot be treated as FIR as it certainly would be a statement made during the investigation of a case and hit by Section 162 of the Code of Criminal Procedure. Consequently, it would be unsafe to rely upon such a tainted investigation by the Investigating Officer. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of State of Andra Pradesh -vs- Punati Ramulu and Others reported in 1994 Supp (1) SCC 590 wherein at paragraphs-5 and 6 has held as under:
"5. According to the evidence of PW 22, Circle Inspector, he had received information of the incident from police constable No. 1278, who was on 'bandobast' duty. On receiving the information of the occurrence, PW 22 left for the village of occurrence and started the investigation in the 93 case. Before proceeding to the village to take up the investigation, it is conceded by PW 2 in his evidence, that he made no entry in the daily diary or record in the general diary about the information that had been given to him by constable 1278, who was the first person to give information to him on the basis of which he had proceeded to the spot and taken up the investigation in hand. It was only when PW 1 returned from the police station along with the written complaint to the village that the same was registered by the Circle Inspector, PW 22, during the investigation of the case at about 12.30 noon, as the FIR, Ex. P-1. In our opinion, the complaint, Ex. P-1, could not be treated as the FIR in the case as it certainly would be a statement made during the investigation of a case and hit by Section 162 CrPC. As a matter of fact the High Court recorded a categorical finding to the effect that Ex. P-1 had not been prepared at Narasaraopet and that it had "been brought into existence at Pamaidipadu itself, after due deliberation". Once we find that the investigating officer has deliberately failed to record the first information report on receipt of the information of a cognizable offence of the nature, as in this case, 94 and had prepared the first information report after reaching the spot after due deliberations, consultations and discussion, the conclusion becomes inescapable that the investigation is tainted and it would, therefore, be unsafe to rely upon such a tainted investigation, as one would not know where the police officer would have stopped to fabricate evidence and create false clues. Though we agree that mere relationship of the witnesses PW 3 and PW 4, the children of the deceased or of PW 1 and PW 2 who are also related to the deceased, by itself is not enough to discard their testimony and that the relationship or the partisan nature of the evidence only puts the Court on its guard to scrutinise the evidence more carefully, we find that in this case when the bona fides of the investigation has been successfully assailed, it would not be safe to rely upon the testimony of these witnesses either in the absence of strong corroborative evidence of a clinching nature, which is found wanting in this case.
6. Keeping in view these circumstances and being of the opinion that the findings recorded by the High Court while acquitting A-1 to A-3 and A-6 to A-8 are borne out by the evidence and are 95 otherwise also reasonable and sound, we do not find any justification to interfere with the order of acquittal. Consequently the State appeal fails and is dismissed. The respondents are on bail. Their bonds shall stand discharged."
49. Though a contention was raised by the learned State Public Prosecutor while defending the impugned judgment and order of conviction that mere delay cannot take away the entire prosecution case, when there is the evidence of the prosecution witnesses and not conducting Test Identification Parade is not a ground to acquit the accused. As already stated supra, there are inconsistencies in the evidence of the prosecution witnesses. On meticulous examination of the evidence on record, it is clear from the evidence of P.Ws.1 to 5, 8, 11, 13, 15, 17 and 18 that 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 96 make the foundation of the prosecution case shaky, 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. So also the medical evidence relied upon by the prosecution is not proved beyond all reasonable doubt. Therefore, the contention of the learned State Public Prosecutor cannot be accepted.
50. Though the learned State Public prosecutor relied upon the dictum of the Hon'ble Supreme Court in the case of Dev Karan Alias Lambu -vs- State of Haryana reported in (2019) 8 SCC 596 with regard to Sections 141 to 149 of the Indian Penal Code dealing with unlawful assembly and punishment for the offences committed in furtherance of common object of unlawful assembly has held that the emphasis in Section 149 of IPC is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141 of IPC. Admittedly in the present case, there was a quarrel between the parties and in the 97 incident, both the parties sustained simple and grievous injuries as stated in both the complaints registered by the same investigating officer in the same police station. In view of the fact that there are inconsistencies in the evidence of the prosecution witnesses, who were not in a position to identify the accused and the doctors of the different hospitals, who treated the deceased and others, have issued the wound certificates and have not been examined as well as the prosecution failing to establish the common object of unlawful assembly in furtherance of common object beyond all reasonable doubt, the judgment relied upon by the learned State Public Prosecutor has no application to the facts and circumstances of the present case.
51. In another judgment relied upon by the learned State Public Prosecutor in the case of Mano Dutt and Another -vs- State of Uttar Pradesh reported in (2012)4 SCC 79 where the fight did not occur on spur of moment and the accused had returned to the place of occurrence with complete preparedness and after giving Lalkara, had attacked the deceased, it was held that the common intention of accused to kill the deceased was 98 proved, especially by their lalkara and further the participation of the accused in case of common intention would not depend on extent of overt act where accused with common intention had inflicted injuries on deceased in preplanned manner and the provisions of Section 34 of the IPC would be applicable to all. Admittedly, in the present case, it is the deceased Narayana, who went to the garden of accused No.1 to fix the electric fuse expressly, who was the cause for the incident and due to verbal altercation between the parties, there was a fight between two groups with regard to which two complaints were lodged by two different parties and the investigation conducted was by two separate investigating officers. Admittedly, in the complaint lodged by accused No.2 - Pushparaj, the trial Court acquitted all the accused persons i.e., P.Ws.1 to 5 in the present case. The prosecution has failed to prove beyond all reasonable doubt that both oral and documentary evidence on record, establish the guilt of the accused persons in causing homicidal death of the deceased, as the evidence on record i.e., Ex.D.10, the wound certificate issued by the Raj Nursing Home in favour of Narayana Murthy (deceased Narayana), clearly depict that the injuries mentioned 99 therein are simple in nature whereas the wound certificate issued by the Pradeep Nursing Home disclose that injury Nos.1 to 9 are simple and injury Nos.10 to 11 are grievous in nature. Even the doctor, who treated the deceased, is not examined and the postmortem report clearly depict that the cause of death was due to respiratory failure as a result of complication of injuries sustained by the deceased. Therefore, in view of the inconsistencies in the evidence of both the prosecution witnesses and medical evidence, the prosecution has failed to establish the offences as alleged in the charge sheet against the accused persons beyond all reasonable doubt. Therefore, the above said judgment relied upon by the learned SPP is of no assistance to the case of the prosecution and has no application to the facts and circumstances of the present case.
52. Though the learned SPP relying upon the dictums of the Hon'ble Supreme Court in the cases of State of Uttar Pradesh - vs- Naresh and Others reported in (2011)4 SCC 324 and Bhajan Singh Alias Harbhajan Singh and Others -vs- State of Haryana reported in (2011) 7 SCC 421 contended that 100 credibility of the testimony of the injured witness has to be given due weightage being a stamped witness and his presence cannot be doubted, in view of the prosecution witnesses non identifying the actual assailant and the medical evidence i.e., wound certificates issued by different doctors of different hospitals and different times and non-examination of any of the said doctors, both sides i.e., P.Ws.1 to 5 and accused Nos.1 to 5 specifically stating that they also sustained injuries with regard to which they have produced the wound certificates and doctors, who have issued the wound certificates, having not examined, the judgments relied upon by the learned SPP has no application to the facts and circumstances of the present case.
53. The learned SPP also relied upon the dictums of the Hon'ble Supreme Court in the case of Abdul Sayeed -vs- State of Madhya Pradesh reported in (2010) 10 SCC 259 and Mohan and Another -vs- State of U.P. reported in (2002) 7 SCC 606 with regard identification of accused by the witnesses in a crowd of assailants the Hon'ble Supreme Court has held that where there are large number of assailants, it would be difficult for witnesses to 101 identify each assailant and attribute specific role to him. Admittedly, in the present case, according to the complaint - Ex.P.1, it is alleged that about 18 persons attacked P.Ws.1 to 3 near their house in Somanahalli and destroyed the house hold articles. Neither of the prosecution witnesses have identified the actual assailant, who was involved in the incident and the wound certificates are issued by four different hospitals and doctors who have issued the said wound certificates have not been examined. Therefore, in the absence of the same, the very judgments relied upon by the learned SPP cannot be accepted as they have no application to the facts and circumstances of the present case.
54. It is also relevant to state, at this stage, that according to the prosecution, the deceased Narayana sustained injuries. As per the wound certificate - Ex.P.11, dated 31.7.1998, issued by Deepak Nursing Home, he had sustained 12 injuries, out of which, injury Nos.1 to 9 were simple and injury Nos.10, 11 and 12 are grievous in nature. As per the postmortem report Ex.P.5 dated 15.5.1998 issued by the Kempegowda Institute of Medical Sciences, the deceased had sustained 15 injuries and as per wound certificate 102
- Ex.D.10, dated 16.3.1999, the deceased had sustained three injuries, which were simple in nature. In view of the evidence of P.W.11 - Dr. K. Anand, Professor and Head of the Department of Forensic Medicine, who has opined that the death was due to respiratory failure as a result of complication of injuries sustained and in view of the fact that, the injured was in the hospital for more than 10 days because of either negligence on the part of the injured or on the part of the doctors, who treated him in different hospitals, he might have succumbed to the injuries because of complication. As could be seen from the Medical Jurisprudence and Toxicology, 1st Edition, under the Head - "REMOTE CAUSES: though the injury does not directly cause death, the victim may die after a varying period from remote causes. Even when the victim dies of complications, an assailant is responsible, provided death can be traced to likely result of the injury. In a charge of murder, death should be clearly connected with the injury. The assailant is responsible even if the victim was in a bad state of health when attacked, and if the injury inflicted by the accused accelerated or precipitated the death". The Remote Causes also include: 103
(i) Infection:- a) Direct Infection;
b) Remote Infection;
c) Trauma;
2) Gangrene or Necrosis;
3) Acute Tubular Necrosis (Crush Syndrome)
4) Neglect of Injured Person;
5) Surgical Operation;
Death may occur from complications arising from a simple injury due to improper treatment or negligence on the part of the doctor, or to negligence or willful disobedient on the part of the patient.
55. In view of the inconsistent medical wound certificates issued by the different hospitals and in view of the specific evidence of P.W.11 - Dr. K. Anand and the post mortem report that the death of the deceased Narayana was due to respiratory failure as a result of complication of injuries and the deceased having died in the hospital after more than 10 days, clearly establish that the prosecution has failed to prove beyond all reasonable doubt that the death of the deceased was due to injuries sustained in an 104 unfortunate incident. The said material aspects has not all been considered by the learned Sessions Judge.
VIII CONCLUSION
56. For the aforesaid reasons, the point raised in the present appeals is answered in the affirmative holding that the appellants- accused have made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the trial Court convicting the appellants-accused for the offences punishable under Sections 143, 148, 448, 324, 428, 302 r/w 149 of IPC.
57. In view of the above, we pass the following:
IX ORDER/RESULT
i) a) Criminal Appeal No.2178/2017 filed by
accused No.13,
b) Criminal Appeal No.2171/2017 filed by
accused Nos.16 and 17,
c) Criminal Appeal No.2172/2017 filed by
accused Nos.7, 8, 9, 10 and 12,
105
d) Criminal Appeal No.2193/2017 filed by
accused Nos.2 and 3,
are hereby allowed;
ii) The impugned judgment of conviction and order of sentence dated 29.11.2017/6.12.2017 made in S.C.Nos. 231/1998 c/w 135/1999 c/w 212/1999 c/w 297/1999 on the file of the VII Additional District and Sessions Judge, Bangalore Rural District, Bangalore convicting the appellants-accused for the offences punishable under Sections 143, 148, 448, 324, 428, 302 r/w 149 of the Indian Penal Code, is hereby set aside;
iii) The appellants-accused are hereby acquitted of all the charges leveled against them and they shall be set at liberty forthwith, if not required in any other case; and 106
iv) The fine amount, if any already paid by the accused, shall be refunded to them.
Let a copy of this judgment shall be sent to the concerned jail authorities forthwith.
Sd/-
JUDGE Sd/-
JUDGE pages 1 to 42 Gss* 43 to end Nsu/-