Karnataka High Court
Mrs Shivamma vs State Of Karnataka on 12 March, 2020
Equivalent citations: AIRONLINE 2020 KAR 1788, 2020 (4) AKR 159
Author: H.B.Prabhakara Sastry
Bench: H.B. Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF MARCH 2020
BEFORE
THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY
CRIMINAL APPEAL No.116 OF 2014
BETWEEN:
Mrs. Shivamma
W/o.Mr. Manjunath
Aged 37 years
Resident of
Chimanahalli Village,
Chintamani Taluk
PIN: 563 125.
...Appellant
(By Mr. P.D. Subrahmanya, panel advocate of
High Court Legal Services Committee)
AND:
State of Karnataka
by Chintamani Rural Police
Chintamani Taluk
Through the State Public
Prosecutor, High Court Building
Dr. Ambedkar Veedhi,
Bangalore - 560 001.
...Respondent
(By Sri.Showri H.R., HCGP)
****
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C praying to set aside the judgment of conviction and
Crl.A.No.116/2014
2
order on sentence dated 21-01-2014 passed by the
learned Principal District and Sessions Judge,
Chikkaballapura, in Sessions Case No.111/2008, convicting
the appellant/accused No.1 for the offences punishable
under Sections 342 and 326 read with Section 34 of IPC
and sentencing to undergo Rigorous Imprisonment for six
months and to pay fine of `1,000/- and in default of
payment of fine to undergo rigorous imprisonment for one
month for the offence punishable under Section 342 of IPC
and further sentenced to undergo rigorous imprisonment
for five years and to pay fine of `5,000/- in default of
payment of fine to undergo rigorous imprisonment for one
year for the offence punishable under Section 326 of IPC.
This Criminal Appeal coming on for Hearing, this day,
the Court delivered the following:
JUDGMENT
The present appellant as accused No.1 was tried and later convicted by the learned Principal District and Sessions Judge at Chikkaballapura, (hereinafter referred to as `Trial Court' for brevity), in Sessions Case No.111/2008, by its judgment of conviction and order on sentence dated 21-01-2014, for the offences punishable under Sections 342 and 326 of the Indian Penal Code, 1860 (hereinafter referred to as `IPC' for brevity) and was sentenced Crl.A.No.116/2014 3 accordingly. It is against the said judgment of conviction and order on sentence, the appellant/accused No.1 has preferred this appeal.
2. The summary of the case of the prosecution is that, accused No.1 is the wife of the complainant (PW-1) Manjunatha, and had developed illicit relationship with accused No.2. On 30-04-2008, in the evening at about 8 o'clock, when the complainant returned to his home, he found the presence of accused No.2 along with his wife (accused No.1) in his house. Though accused No.2 left the house, after arrival of complainant, but on the same night, which was on 01-05-2008 at 03:00 hours, once again accused No.2 went to the house of the complainant and got the door opened and when questioned by the complainant as to why he had come once again in that odd hour, the said accused No.2 joined by none else Crl.A.No.116/2014 4 than the wife of the complainant closed the mouth of the complainant, dragged him to the cattle shed which was adjacent to their hut and after tying his hands and legs to a pole there, removed his nicker (half pant) and using a machete and a knife, amputated his penis shaft and also inflicted few more injuries on other parts of his body, thereby, attempted to cause his death. The complaint was lodged by the complainant himself, while under treatment in the Hospital which was registered in the respondent Station Crime No.81/2008 against both accused No.1 (present appellant) and accused No.2, for the offences punishable under Sections 342 and 307 read with Section 34 of IPC. After completing investigation, the respondent Police filed a charge sheet for the said offences. The charge was framed against the accused Crl.A.No.116/2014 5 for the offences punishable under Sections 342 and 307 read with Section 34 of IPC.
3. Since the accused pleaded not guilty, in order to prove the charges leveled against the accused, the prosecution examined in all fourteen witnesses from PW-1 to PW-14 and got marked documents from Exhibits P-1 to P-33. Material Objects from MO-1 to MO-4 were marked from the prosecution side.
Neither any witnesses were examined nor any documents were marked as exhibits from the side of the accused.
4. After hearing both side, the Trial Court by its impugned judgment dated 21-01-2014, acquitted the accused No.1 of the offence punishable under Section 307 read with Section 34 of IPC, however, convicted the appellant/accused No.1 for the offences Crl.A.No.116/2014 6 punishable under Sections 326 and 342 read with Section 34 of IPC and sentenced her accordingly. It is against the said judgment of conviction and order on sentence, the accused No.1 has preferred this appeal.
5. The trial Court records were called for and the same are placed before this Court.
6. Since apart from the present appellant (accused No.1), accused No.2 has also been convicted under the same judgment passed by the Trial Court for the same offences, this Court, when specifically asked learned counsels from both side as to the filing of any appeal by accused No.2 against the impugned judgment of conviction, both the learned counsels pleaded that they have no information, as such, they submitted that no such appeal is pending. Accordingly, the matter was proceeded further. Crl.A.No.116/2014 7
7. The appellant/accused No.1 earlier was being represented by her counsel. However, when the matter was listed for final hearing, the said learned counsel for the appellant had remained absent. Considering the fact that the appeal is of the year 2014 and causing further delay in disposing of the matter was not in the best interest of justice, this Court by its detailed order dated 04-03-2020 appointed learned counsel Mr. P.D. Subrahmanya, a panel advocate from the Legal Services Committee of this Court, to appear on behalf of the appellant and conduct the case of the appellant in this matter. Accordingly, the said learned counsel from the panel of Legal Services Committee of this Court is representing the appellant in the matter.
8. Heard arguments of the learned panel advocate from the Legal Services Committee of this Crl.A.No.116/2014 8 Court for the appellant and the learned High Court Government Pleader for the respondent State.
9. Perused the material placed before this Court including the impugned judgment and also Trial Court records.
10. For the sake of convenience, the parties would be referred to as per their ranks before the Trial Court.
11. The points that arise for my consideration in this appeal are:-
1] Whether the prosecution has proved beyond reasonable doubt that on 01-05-2008 at about 03:00 hours, the appellant/accused No.1 joined by accused No.2 closed the mouth of the complainant, dragged him to the cattle shed which was adjacent to their hut and after tying his hands and legs to a pole there, removed his nicker and using a machete and a knife, amputated his penis shaft and also inflicted few more injuries on other parts of his Crl.A.No.116/2014 9 body and thereby has committed the offences punishable under Sections 326 and 342 read with Section 34 of IPC?
2] Whether the judgment of conviction and order on sentence deserves any interference at the hands of this Court?
12. The undisputed facts from the evidence led by the prosecution is that, the accused No.1 - Smt. Shivamma who is the appellant herein is the wife of the complainant cum alleged victim (PW-1 - Manjunatha). PW-2 - Kumari Shalini who is said to be a minor girl aged about 15 years as on the date of her evidence, is their daughter. PW-3 - Lakshmidevamma is the sister-in-law of the complainant and PW-4 - Lakshmana Reddy is the younger brother of the complainant. It is also not in dispute that on 01-05-2008, the complainant sustained injuries including amputation of his penis shaft. Crl.A.No.116/2014 10
In the light of these undisputed facts, the case of the prosecution is that, those injuries sustained by the complainant on the said day including grievous injury of amputation of penis shaft were inflicted by none else than the accused including the present appellant as accused No.1. On the other hand, the defence of the accused No.1 is that the complainant had fallen from a coconut tree while plucking coconuts from the tree and had fallen on the fence which included sharp edged zinc sheets and sphere shaped iron rods which have caused the injuries upon him. It is on the said point of whether the injuries found on the complainant were by the act of a human being and if so, by whom, the entire evidence of the production witnesses is required to be analysed.
13. In order to prove the alleged incident of inflicting injuries upon the complainant as the one by Crl.A.No.116/2014 11 none else than the accused No.1, the prosecution mainly relied upon two sets of witnesses. The first set of witnesses is the complainant, his family members and close relatives of the complainant and the second set of witnesses is the residents of the village who are the independent witnesses.
14. The first set of witnesses includes PW-1 - Manjunatha who is said to be the complainant and victim in the case; his daughter PW-2 - Kumari Shalini, his sister-in-law i.e. PW-3 -Lakshmidevamma.
15. Among the first set of witnesses, PW-1 the victim, in his evidence, has stated that, on the date of incident in the evening at about of 8 0' clock, when he returned home, he saw the accused No.2 near his house. Thereafter the said accused left the place, then he had his dinner. Afterwards what happened he Crl.A.No.116/2014 12 did not know. However, on the next day, he regained conscious in the Hospital. His genital organ was cut and a cut injury was made on the lower bottom of his neck. The accused have thus cut by using a knife on that night. He stated that, it was the accused who have cut the same since he has actually seen it. Accused No.2 made the cut while accused No.1 was holding him. They have also inflicted injuries behind his left shoulder, head and below the neck. The people of the village admitted him to Hospital. Accused No.1 had poured water in the spot of the offence to wash out the blood. Then, he regained conscious and went to his sister-in-law and informed her the details. First, he was shifted to Hospital at Chintamani and from there, to Victoria Hospital at Bengaluru. Police have recorded his statement at Chintamani as per Ex.P-1. He also stated that he was Crl.A.No.116/2014 13 assaulted and caused injuries on the lower part of the neck, head and cut his genital organ using knife and machete. The witness stated that he is seeing the knife at MO-1. Stating that he was wearing a white colour nicker on the said day, he has identified the same at MO-2. He has further stated that his hands and legs were tied with a plastic rope which he identifies at MO-3. Using the same rope, his mouth was also tied as well the ear. The Police have collected soil from the place of the incident and MO-4 is the blood stained mud. The witness stated that accused No.2 had illicit relationship with accused No.1. Since he had questioned that, they have committed this act. In his detailed cross-examination, several suggestions were made about the alleged improvements said to have been made by him in his evidence which were not there in his alleged complaint Crl.A.No.116/2014 14 at Ex.P-1. He has stated that his house includes a hall and a kitchen and these people will be in the hall of the house. He lives with his two children in the said house.
16. PW-2 - Kumari Shalini, the daughter of PW-1 as well accused No.1, in her examination-in- chief, except admitting her relationship with PW-1 and accused No.1, has pleaded her ignorance about the alleged incident. Though she stated that in three years, on one day, her father was admitted to a Government Hospital at Chintamani, but the reason for the same was that, he had fallen from a coconut tree sustaining injuries to his head and hands. Since according to prosecution, she being the daughter of the complainant, was aware of the alleged incident as well the alleged illicit relationship of her mother with accused No.2, she was permitted to be treated as Crl.A.No.116/2014 15 hostile and the prosecution was permitted to cross- examine her. However, even in her cross- examination, the prosecution could not get any support from the said witness. The relevant portions of her alleged statement before the Investigating Officer were read over to the witness and confronted to her, but the witness denied that she had given those statements to the Investigating Officer. Those portions of her statement were marked as Exs-P-2, P-3, P-4 and P-5. In her cross-examination from the accused' side, she stated that on the previous night, when her father was admitted to the Hospital by Ashwatha Reddy, her uncle Lakshmana Reddy and Narayana Reddy, it was only herself, her mother and younger brother who were there in the house and her father was lifted from the coconut garden of Erappa Crl.A.No.116/2014 16 Reddy and after changing his clothes, he was taken to the Hospital.
17. PW-3 - Lakshmidevamma, the sister-in-law of PW-1 has pleaded her ignorance about the alleged incident. She has even stated that, she does not know about her husband Narayanaswamy and others shifting the complainant for treatment to the Hospital. She also stated that she does not know as to whether Srinivasa Reddy and Lakshmana Reddy had advised accused No.1 about her alleged illicit relationship with accused No.2. According to prosecution, even this witness was also fully aware of the incident, since she was said to have been heard from none else than the injured himself and had given her statement accordingly before the Investigating Officer. Since her evidence was diametrically opposite to the same, she too was permitted to be treated as hostile and the Crl.A.No.116/2014 17 prosecution was permitted to cross-examine her. However, the prosecution could not get any support from her also. The relevant portions of her alleged statement before the Investigating Officer were confronted to the witness and were marked at Ex.P-7, Ex.P-8, Ex.P-9, Ex.P-10 and Ex.P-11.
18. PW-4 - Lakshmana Reddy, the younger brother of PW-1 also, according to the prosecution, had heard from none else than the injured complainant himself, but he did not support the case of the prosecution. He stated that though he is aware of his brother sustaining bleeding injuries, but he does not know about the alleged incident. When his brother had come near his house, he noticed injures upon his genital organ. Though he questioned as to how the same was caused, the injured did not say anything since he could not able to speak at that time. Then, Crl.A.No.116/2014 18 he, joined by Ashwatha Reddy shifted the injured to the Government Hospital at Chintamani and after getting treatment for a day there, the injured was shifted to Victoria Hospital at Bengaluru where he was in-patient for fifteen days. He further stated that he has not given any statement before the Police and does not even know about the complainant giving complaint before the Police. He also pleaded his ignorance about the alleged illicit relationship between accused No.1 and accused No2. This witness also was treated as hostile. Still, the prosecution in its cross- examination of the witness, could not get any support from him. The portions of his alleged statement before the Investigating Officer were marked at Exs.P-12 and P-13. In his cross-examination from the accused' side, he stated that one Erappa Reddy has got a coconut garden in his village and in order to Crl.A.No.116/2014 19 avoid the problems from the monkeys, he has put fencing of iron rods around the trees.
19. From the above evidence of the complainant himself and the other family members and close relatives of the complainant, what can be seen is that, except the complainant, none else have supported the case of the prosecution including the daughter of the complainant. According to complainant (PW-1), in his house, himself, his wife and two children are residing and they used to sleep in the hall portion of the house. Presuming the same were to be true then, had really the incident of accused No.2 coming to their house and the said accused joined by none else than accused No.1 who is the mother of PW-2 forcibly dragging the complainant to an adjacent cattle shed and assaulting him with knife or machete or both, inflicting grievous and multiple injuries upon him, Crl.A.No.116/2014 20 had taken place then, it was naturally expected of the children of the complainant/injured and accused No.1, more particularly, the elder daughter Kumari Shalini, who was about ten years old as on the said date, getting disturbed and waking up and witnessing the incident. On the contrary, the said witness Shalini, in her evidence, apart from stating that no such alleged incident had taken place, has categorically and specifically stated that, on the night of the incident, her father i.e. PW-1 was not in their house. This, at the threshold, puts an obstacle to believe that, any such incident of anybody entering his house on that night and inflicting multiple injuries upon him as well about the involvement of the accused in the said Act.
20. Secondly, according to the prosecution, after the incident, the complainant some how getting himself released went to the house of his brother Crl.A.No.116/2014 21 Narayanaswamy, where he met his sister-in-law - PW-3 - Lakshmidevamma as well his younger brother
- Lakshmana Reddy and informed them about the incident. However as already observed above, the said younger brother Lakshmana Reddy (PW-4) though has stated that, he saw his brother (complainant) sustaining injuries to his genital organ, but it was at about 12 o'clock on 01-05-2008 in the afternoon and that despite he specifically asking the cause for the said injury, the injured brother was unable to speak, as such, he did not tell as to how the said injury had happened. In this way, the very close relative who is none else than the full blood brother of PW-1 has not supported the case of the prosecution. The said brother went to the extent of even stating that he does not know about the alleged illicit relationship between accused No.1 and accused No.2. Crl.A.No.116/2014 22
Similarly PW-3 - Lakshmidevamma, the sister- in-law of the injured complainant also has pleaded her ignorance about the alleged incident. She has gone to the extent of telling that she does not even know about the injured sustaining injuries and he being shifted to the Hospital. In this manner, when the very family members involving the daughter, brother and sister-in-law have not supported the case of the prosecution, the sole evidence of PW-1 who claims himself to be the injured has to be analysed very carefully.
21. The second set of witnesses upon whom the prosecution relied upon to prove the alleged guilt against the accused are, PW-5 - Reddappa, PW-6 - Lakshmana Reddy, and PW-13 - Srinivasa Reddy, who, according to the prosecution are the residents of Crl.A.No.116/2014 23 the same village, who had earlier conducted a panchayat in connection with the alleged illicit relationship between accused No.1 and accused No.2 and had advised accused No.1 suitably. Further, on the date of incident and after the incident, while injured PW-1 (complainant) was said to have been going to the house of his brother with bleeding injuries on his body, it is these three witnesses who saw him on the way and heard from the mouth of none else than PW-1 about the incident and the alleged overt act of the accused in inflicting the injuries upon the injured. However, none of these three witnesses have supported the case of the prosecution. None of them have stated that they heard about the alleged incident from the complainant. Though PW-5 has stated that in connection with the alleged illicit relationship of Crl.A.No.116/2014 24 accused No.1, a panchayat was held, wherein himself was also one of the panchas and had advised accused No.1 - Shivamma suitably, but he specifically stated that, on the date of the alleged incident, he was not in the village, as such, he does not know the details of the incident. He further stated that after his return, though he came to know that some incident had taken place, since to the doctor at Victoria Hospital at the time of admission of the injured, his telephone number was given by the complainant and the said Doctor had called him over phone, he had only told the Doctor to give suitable treatment to the injured and ensure his living. Despite the prosecution subjecting him to a detailed cross-examination after getting him treated as hostile, still, it could not get any support from him. The witness has even denied that he has given statement before the Investigating Crl.A.No.116/2014 25 Officer as per Exs.P-14 and P-15. In his cross- examination from the accused' side attempts were made to show that, he being a former Chairman of the Mandal Panchayat and a Member in the Committee of the Temple in the village, had asked accused No.1 to vacate their house to enable the extension of the Temple and since she refused to vacate, a false complaint was lodged making use of the complainant who incidentally had sustained injury by falling down from a coconut tree. However, PW-5 did not admit those suggestions as true. Still, the fact remains that, even in his cross-examination, the prosecution could not get any support from the witness.
22. The case of PW-6 - Lakshmana Reddy is in no way different from the case of PW-5. He was also projected by the prosecution keeping him on the same standing as that of PW-5 and projecting him also to be Crl.A.No.116/2014 26 one of the panchas in the Panchayat and also as a person having heard about the details of the incident immediately after such incident from none else than the injured complainant himself. However, this witness also though stated that with respect to some dispute between the complainant and accused No.1, a panchayat was held, he stated that he has not heard anything from the injured personally. On the other hand, he stated that it was the younger brother of the complainant, i.e. Lakshmana Reddy who had told him about the incident stating that, his brother was assaulted and his genital organ was cut, as such, he was admitted to the Hospital. The said Lakshmana Reddy had also told him that it was accused No.1 who had committed the said act. The same thing he had told before the Police. Even if the said statement of PW-6 that he heard from the younger brother of Crl.A.No.116/2014 27 injured complainant, i.e. Lakshmana Reddy is to be considered, still, it cannot be ignored of the fact that, the very Lakshmana Reddy (PW-4), the younger brother of the complainant, as observed above, has totally turned hostile and not at all supported the case of the prosecution. When that being the case, the said Lakshmana Reddy telling anything either about the incident or about the alleged role of accused No.1 to PW-6 is ruled out. Further, even in the cross- examination of PW-6, the prosecution could not get any support from him. The witness has denied that he had given the statement before the Investigating Officer as per Exs.P-16 and P-17.
23. PW-13 - Srinivas Reddy has categorically stated that he has neither seen the incident nor stated before the Police that he has seen the incident. On the said date, after he returned to his home, he Crl.A.No.116/2014 28 came to know that injured Manjunatha was admitted to the Hospital. However, he did not go and meet Manjunatha in the Hospital. Similarly the said Manjunatha also did not meet him and stated as to who assaulted him. Even after treating this witness also as hostile, and prosecution was permitted to cross-examine him as well, the prosecution could not get any support from him. The witness has even denied that he has given any statement before the Investigating Officer as per Exs.P-27, P-28, P-29, P-30 and P-31.
24. In this way, the second set of important witnesses, who, according to the prosecution were heard about the incident and the alleged role of the accused in such incident immediately after the alleged incident, that too, from none else than the injured complainant/PW-1 himself, also have not supported Crl.A.No.116/2014 29 the case of the prosecution. In such a situation, when none of the family members and none of the independent material witnesses have supported the case of the prosecution, the appreciation of the evidence of PW-1 to ascertain whether this evidence is trustworthy and reliable requires more care and caution.
25. As observed above, PW-1 the victim by a prima facie reading of his evidence appears to have supported the case of the prosecution by telling that it was the accused who had inflicted injuries upon him on the alleged date. However, a careful reading of his evidence would go to show that the witness has stated that after he returned to his house on the date of incident, in the evening, he had his dinner. Thereafter, he does not know what they did. He regained conscious only in the Crl.A.No.116/2014 30 Hospital on the next day morning. The genital organ was cut and lower portion of his neck was also cut. If that were to be the case, then after his dinner, if he was not aware as to what was made to him, then, how come he say that it was the accused who had done it.
Secondly, though he (PW-1) has stated that it was the accused who have caused such an act since he has seen it from his own eyes, but, as already observed above, the very same witness has stated that, it is not known as to who had done it. Further, he has also stated that he regained conscious only in the Hospital on the next day morning. However, in the very same evidence at a later stage, he has stated that when accused No.1 poured water to wash out the blood, he gained conscious. Thus, even with respect to his alleged regaining consciousness also, Crl.A.No.116/2014 31 the witness is not sure whether it was in his house only or was it at the Hospital on the next day morning.
Thirdly, if his statement that he regained conscious only on the next day morning in the Hospital is accepted and believed, then, the contention of the prosecution that PW-5, PW-6 and PW-13 were the three witnesses who heard about the incident from the mouth of injured complainant himself immediately after the incident and that they had seen the injured victim with bleeding injuries, becomes false by itself. As such, the evidence of those three witnesses, i.e.PW-5, PW-6 and PW-13 that they did not see the injured complainant immediately after the alleged incident becomes more nearer to the truth and believable than the contention of the Crl.A.No.116/2014 32 prosecution that they had seen the injured on that day.
Fourthly, the very same injured witness who has identified the complaint at Ex.P-1 has stated in his complaint at Ex.P-1 that while accused No.2 was holding him firmly, it was accused No.1 - wife who cut the genital organ with a machete (chopper - machhu), however, in his evidence he has put it in the reverse order that it was accused No.1 his wife who was holding him firmly and it was accused No.2 who inflicted injuries upon him by cutting his genital organ. Further, in the complaint he has stated that, the weapon used was a machete whereas in his evidence, he has called the same as a knife. The said contradiction was brought in his cross-examination as well in the cross-examination of the Investigating Officer from the accused side.
Crl.A.No.116/201433
Fifthly, in his evidence, PW-1 has stated that he does not know who inflicted injuries upon him and he regained conscious on the next day morning in the Hospital. Later, he said that he himself has seen the occurrence of the incident from his own eyes. However, the said statement that he has seen the incident by himself in his own eyes has not been stated by him in his complaint which was also elicited as an improvement in the cross-examination of this witness as well of Investigation Officer from the accused' side.
Similarly, the evidence of PW-1 that accused No.1 washing the blood stains from the spot and due to which, he regained conscious and also using plastic rope his legs, hands, mouth and ears were all tied by the accused were all shown to be an improvement made by this witness for the first time in his evidence. Crl.A.No.116/2014 34
The said witness (PW-1) has further stated that apart from admitting a suggestion that he always meets the Police and attends to their personal work, has volunteered to say that, he travels with them in their motor cycle and challenges the people in the village. He also stated that, he also works as an agent in securing the Caste Certificates. Further, the witness has also stated that, he helps the Police by signing several mahazars as a panch, as such, the Police attends his personal work neatly. The witness himself volunteered to say that even if he gets a stomach pain, it will be the Police who would admit him to the Hospital. In this way, the witness apart from showing that there are lot of contradictions and improvements in his evidence, has himself shown that, he is getting lot of favours from the complainant Police since he attends to their personal and various Crl.A.No.116/2014 35 other works. In such a circumstance, the sole evidence of PW-1 injured which lacks reliability upon it and appears to be not safe to rely upon, cannot be made the sole basis for convicting the accused No.1 for the alleged offences.
26. The remaining witnesses examined by the prosecution, though are not material witnesses, still, they too have not supported the case of the prosecution to take the case of the prosecution any further.
27. PW-7 - Ashwatha Reddy, according to the prosecution, was the one who had seen the injured complainant and after hearing from his mouth about the alleged incident, had shifted him to the Government Hospital at Chintamani. However, the said witness though has stated in his evidence that Crl.A.No.116/2014 36 he got admitted the injured to the Government Hospital at Chintamani, but stated that the younger brother of the injured had told him that the injured had fallen from a tree as such, he was required to be taken to the Hospital. Thus, he, joined by said Lakshmana Reddy, the younger brother of the injured shifted the injured complainant to the Hospital. He categorically stated that nobody told him that the injured was assaulted by any one, much less, the accused No.1. This witness also was treated as hostile and prosecution was permitted to cross- examine him. However, the prosecution could not get any support from this witness. His alleged statements before the Investigating Officer were confronted to the witness and marked at Exs.P-18 and P-19. In this manner, PW-7 also has not supported the case of the prosecution.
Crl.A.No.116/201437
28. PW-8 - Narayanaswamy who is the brother- in- law of the injured complainant has stated that his another brother-in-law, i.e. Lakshmana Reddy (PW-4) informed him about the incident over phone, as such, he went to the Government Hospital at Chintamani and thereafter on the advise of the Doctor, the injured was shifted to Bengaluru, however, in order to make financial arrangement for medical expenses, he came back to his village. The witness has specifically stated that he did not enquire with the injured about the incident since he was not in a condition to speak. On the other hand, he stated that the injured and his wife were happy and he does not know about the alleged panchayat said to have been held in the village of the complainant wherein the accused No.1 was said to have been advised. Even this witness also was treated as hostile and prosecution was permitted to Crl.A.No.116/2014 38 cross-examine him. However, it could not get any support from the witness. The confronted portions of his alleged statement before the Investigating Officer were marked at Exs.P-20 and P-21.
29. PW-9 - Bachi Reddy and PW-10 - Anjaneya Reddy were examined by the prosecution, projecting them as the panch witnesses for mahazar for the alleged scene of offence cum seizure mahazar at Ex.P-6. Both these witnesses have clearly stated that the Police have obtained their signatures upon a pre- prepared document and without knowing as to what that document was, they have singed to the said document since the Police had asked them to sign it. In this way, the prosecution could not get any support from the mahazar witnesses also. As such, the evidence of the Investigating Officer (PW-11) that on 01-05-2008, he drew a scene of offence panchanama Crl.A.No.116/2014 39 as per Ex.P-6 and from the spot of the offence, he also seized the material objects which are marked at MO-1 to MO-4 have remained un-corroborated by the evidence of these two witnesses. Hence, the alleged scene of offence as well the alleged seizure of the Material Objects at MO-1 to MO-4 also stands not proved by the prosecution.
30. At this stage, one more discrepancy that can be noticed in the case of the prosecution is that, according to the Investigating Officer, the weapon seized from the spot under alleged panchanama at Ex.P-6 was a machete (chopper/machchu) which is marked at MO-1. However, as already observed above, PW-1 the injured in his evidence has stated that he was inflicted injuries with a knife. It is nobody's case that PW-1 has got confused a machete with that of a knife. Though he is said to be a Crl.A.No.116/2014 40 villager, still, the said villager like PW-1 can be taken as knowing the difference between a knife and a machete. Therefore, with respect to alleged weapon used in the alleged commission of crime also, the prosecution could not able to place reliable evidence.
31. In the light of the above, the evidence of PW-12 - Secretary of Grama Panchayat, who has given the alleged revenue documents as per Ex.P-24 to show that the alleged place of offence stands in the name of PW-1, would take the case of the prosecution no further.
Similarly, the evidence of PW-14 - Doctor who has stated that on 01-05-2008, in the afternoon at about 2 o'clock, he examined the injured Manjunatha, who was brought to him with the history of assault by the accused and noticed upon the injured, four injuries including a grievous injury in the form of complete Crl.A.No.116/2014 41 amputation of the penis shaft at the base and exposure of both the testicles with incision of the scrotum measuring 4"x2", would not by itself go to prove that the said injuries inflicted are caused by the accused.
32. In the above circumstance, the evidence of the Investigating Officer (PW-11) would also take the case of the prosecution no further. His evidence that, he recorded the statements of the above said prosecution witnesses and also seized the incriminating materials including the weapon at MO-1 since have all been not at all established by corroborative evidence of any of other prosecution witnesses, the Investigating Officer's evidence alone would not make the case of the prosecution believable.
Crl.A.No.116/201442
33. The motive alleged behind the crime, by the prosecution, is that, the accused No.1 had developed illicit relationship with accused No.2, as such, both the accused with their common intention to eliminate the complainant, had, on the alleged date and time of incident, inflicted injuries upon him and their attempt to kill him could not be succeeded, as such, the charge sheet was filed only for the offences punishable under Sections 342 and 307 read with Section 34 of IPC. However, since none of the prosecution witnesses except PW-1 has supported the case of the prosecution on the said aspect and evidence of PW-1 also is proved to be not trustworthy, the alleged motive behind the alleged commission of the crime also fades away.
34. The defence of the accused is that in the village of the complainant, one Erappa Reddy had a Crl.A.No.116/2014 43 coconut garden which was fenced with sharp edged iron rods and sharp edged zinc sheets. The complainant while attempting to pluck the coconuts from the said tree, had fallen on the fence and sustained the injuries. The suggestion made to the said effect to the Doctor who was examined as PW-14 was not fully admitted by him as possible. Though he admitted that the other injuries which were simple in nature, more particularly, injury No.2 could have been possible to be caused in that manner, but not the grievous injury. However, PW-2 - Kumari Shalini, the daughter of the complainant herself has stated in her examination-in-chief that, her father had sustained injury by falling from a coconut tree and it is in that regard, her father was admitted to a Hospital.
Further, PW-4 - Lakshmana Reddy, the younger brother of the complainant in his cross-examination Crl.A.No.116/2014 44 from the accused' side has stated that, one Sri. Erappa Reddy in their village has got a coconut tree and that in order to avoid the problem from the monkeys, he had put fencing around the trees with iron railings and rods.
PW-7 - Ashwatha Reddy has stated that the said PW-4 - Lakshmana Reddy, for the injuries sustained by his brother and before shifting him to a Hospital, had told him that his brother (PW-1) had fallen from a tree and had sustained injuries, as such, he must be shifted to a Hospital. It is only then, he joined said Lakshmana Reddy and shifted the injured in an auto rickshaw to the Hospital. Thus, the evidence of these people who are none else than the Doctor, the younger brother and the person who shifted the injured to the Hospital would also go to show that, there was no whisper made to them about the Crl.A.No.116/2014 45 commission of any criminal act or offences against the injured much less, by the accused resulting in injuries upon the complainant. Thus, the defence taken by the accused further weakens the case of the prosecution.
35. However the Trial Court did not appreciate the evidence of the prosecution witnesses in their proper perspective. On the other hand, merely because a trustworthy and reliable evidence of the sole injured witness can be believed and conviction can be pronounced, the Trial Court, in a hasty manner and without even assessing whether the evidence of PW-1/injured witness was trustworthy and reliable, proceeded to solely rely upon his evidence and pronounced the judgment of conviction holding the present appellant/accused No.1 as guilty of the offences punishable under Sections 342 and 326 read Crl.A.No.116/2014 46 with Section 34 of IPC. Since the above analysis now shows that the said appreciation of the evidence by the Trial Court is with error, the said judgment of conviction of the appellant/accused No.1 for the aforesaid alleged offences deserves to be set aside and the appellant/accused No.1 deserves to be acquitted of the alleged offences holding that the prosecution has failed to prove the alleged guilt against her beyond reasonable doubt.
Accordingly, I proceed to pass the following:
ORDER [i] The appeal filed by appellant/accused No.1 is allowed;
[ii] The judgment of conviction and order on sentence dated 21-01-2014 passed by the learned Crl.A.No.116/2014 47 Principal District and Sessions Judge, Chikkaballapura, in Sessions Case No.111/2008, is set aside confining to the appellant here in;
[iii] The appellant - Mrs. Shivamma, W/o. Mr. Manjunath, Aged about 37 years, Resident of Chimanahalli village, Chintamani Taluk - 563 125, is acquitted of the offences punishable under Sections 342 and 326 read with Section 34 of IPC;
[iv] In case the appellant/accused No.1 is in judicial custody, serving the sentence, the jail authorities are hereby directed to set her at liberty forthwith, unless she is required to be continued in the judicial custody in any other criminal case/s;
[v] The fine amount deposited, if any, by the appellant/accused No.1 shall be released to her after the period of appeal and if no appeal is preferred; Crl.A.No.116/2014 48
[vi] In view of disposal of the main appeal, I.A.No.1/2014 does not survive for consideration.
Registry to transmit a copy of this judgment along with Trial Court records to the Trial Court immediately.
Registry to transmit today's order to the jail authorities forthwith.
The Court acknowledges the services rendered by Sri.P.D. Subrahmanya, learned panel advocate from the High Court Legal Services Committee. While acknowledging the assistance rendered by him in this case, the Court recommends to consider the remuneration payable to him to an amount not less than a sum of `5,000/-.
Sd/-
JUDGE BMV*