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Karnataka High Court

The State By Mandya Rural Police Station vs Ramaraju on 22 November, 2022

Author: K.Somashekar

Bench: K.Somashekar

                                            -1-
                                                   CRL.A No. 581 of 2016


                                                                  R


                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 22ND DAY OF NOVEMBER, 2022

                                       PRESENT
                       THE HON'BLE MR JUSTICE K.SOMASHEKAR
                                          AND
                          THE HON'BLE MR JUSTICE C M JOSHI
                           CRIMINAL APPEAL NO. 581 OF 2016
               BETWEEN:

                    THE STATE BY MANDYA RURAL POLICE STATION
                    RURAL POLICE STATION,
                    REP. BY STATE PUBLIC PROSECUTOR,
                    HIGH COURT BUILDING,
                    BENGALURU-560 001.
                                                          ...APPELLANT
Digitally
signed by D    (BY SRI. ABHIJITH K.S - HCGP)
K BHASKAR
Location:      AND:
High Court
of Karnataka
               1.   RAMARAJU
                    S/O. MUTHEGOWDA,
                    AGED ABOUT 50 YEARS,
                    PANCHYAT MEMBER,
                    R/AT HOSABUDANUR VILLAGE,
                    MANDYA TALUK-571 401.

               2.   MUTHURAJU
                    S/O. RAMARAJU,
                    AGED ABOUT 25 YEARS,
                    OCC: AGRICULTURE,
                    R/AT HOSABUDANUR VILLAGE,
                    MANDYA TALUK-571 401.

               3.   MANJU @ MANJUNATH
                    S/O. CHIKKAHYDEGOWDA,
                    AGED ABOUT 24 YEARS,
                               -2-
                                      CRL.A No. 581 of 2016




     OCC: AGRICULTURE,
     R/AT HOSABUDANUR VILLAGE,
     MANDYA TALUK-571 401.

4.   ARUNA @ SIDDA
     S/O. SIDDEGOWDA,
     AGED ABOUT 25 YEARS,
     OCC: AGRICULTURE,
     R/AT HOSABUDANUR VILLAGE,
     MANDYA TALUK-571 401.
                                         ...RESPONDENTS

(BY SRI. G.B. SHARATH GOWDA - ADVOCATE FOR
                R-1 TO R-4)

      THIS CRL.A. FILED U/S.378(1) & (3) CR.P.C BY THE
H.C.G.P FOR THE STATE PRAYING THAT THIS HON'BLE
COURT MAY BE PLEASED TO GRANT LEAVE TO APPEAL
AGAINST THE JUDGEMENT AND ORDER OF ACQUITTAL
DATED 5.12.2015 PASSED BY THE PRL. S.J., MANDYA IN
S.C.NO.91/2013 - ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE P/U/S 504,307,506 R/W 34 OF IPC.

      THIS CRIMINAL APPEAL, COMING ON FOR 'DICTATING
JUDGMENT', THIS DAY, K. SOMASHEKAR .J., DELIVERED
THE FOLLOWING:

                        JUDGMENT

This appeal is directed against the judgment of acquittal rendered by the Court of the Principal Sessions Judge, Mandya in S.C.No.91/2013 dated 05.12.2015 acquitting Accused / Respondent Nos.1 to 4 for the offences -3- CRL.A No. 581 of 2016 punishable under Sections 504, 307 and 506 read with Section 34 of IPC, 1860. The State has filed this appeal challenging the said acquittal judgment rendered by the trial Court and seeking to convict respondent Nos.1 to 4 / accused for the offences for which they were charged, by considering the grounds urged in this appeal.

2. Heard the learned HCGP for State and so also the learned counsel Shri G.B. Sharath Gowda for respondents / accused. Perused the judgment of acquittal rendered by the Trial Court inclusive of the exhibited documents.

3. The factual matrix of the appeal is as under:

It transpires from the case of the prosecution that on 11.7.2012, PW-1 / complainant namely Pradeep S/o. T.N. Puttaswamy and PW-2 / Srinivasa, were travelling in a tempo at Garibi Site where tar was being newly laid under the Suvarna Grama Yojana Scheme. Since there was a break in the tar, PWs 1 and 2 are said to have fired at those workers who had done the said shabby work. The said fact -4- CRL.A No. 581 of 2016 was taken to the notice of Accused No.1 / Ramaraju. Hence, it is stated that on the previous day of the incident in the night, Accused No.1 / Ramaraju had abused in filthy language at those, who had complained about the shabby work in laying the tar and that the complainant and PW-2 having heard the same, had remained silent as it would lead to a scuffle. It is alleged that on 13.07.2012 at about 9.00 p.m., when PW-1 / complainant, PW-2 and CW-3 to 6 were talking with each other near the shop of Shankar, at that time, all the accused persons forming an assembly, had gone there and started abusing them in filthy language and obstructed the complainant. It is stated that Accused Nos.1 and 3 caught hold of PW-1 and dragged him to and fro by holding his shirt and that when PW-2 and others told the accused persons that they had intentionally come to quarrel with them, Accused No.2 had tried to assault PW-2 / Srinivas on his neck with a razor and that when PW-2 tried to escape, he was assaulted with razor on his cheek and that again Accused No.2 / Mutthuraju is said to have assaulted -5- CRL.A No. 581 of 2016 PW-2 / Srinivas with razor on his lip and near right eye and caused injuries, with an intention to murder Srinivas. It is stated that while they were running away from the spot to escape from the clutches of the accused persons, the said accused are said to have threatened PW-1, PW-2 and others with dire consequences. Thereafter, it is stated that CW-3 who is cited as a witness in the charge-sheet, had taken the injured Srinivasa / PW-2 on his motorcycle to the hospital for treatment and thereafter complaint was lodged against accused persons.

4. Based on the complaint filed by the complainant who was examined as PW-1, criminal law was set into motion by recording an FIR by one K.M. Nagaraj / PW-5 as per Exhibit P5, who was the Head Constable in the Rural Police Station, Mandya. PW-5 after having partly investigated the case, handed over the case file to C.W.10 i.e., P.S.I. of Rural Police Station, Mandya. It appears that C.W.10 having investigated the case, after recording the statement of witnesses and so also drawing the mahazar in -6- CRL.A No. 581 of 2016 the presence of panch witnesses and after securing the Wound Certificate, had laid the charge-sheet against the accused persons before the Committal Court for the offences reflected therein.

Subsequently, the Committal Court had passed an order as contemplated under Section 209 of the Cr.P.C. by following the provisions of Section 207 Cr.P.C. relating to furnishing of the charge-sheeted materials and the case was committed to the Court of Sessions for trial. The Trial Court, after hearing the arguments of the learned Public Prosecutor for State and so also the defense counsel for the accused relating to framing of charge and having found prima facie that there are certain materials to frame charge against the accused, had framed charge against the accused for offences under Sections 504, 307, 506 read with Section 34 of the IPC. The charges were read over to the accused in the language known to them whereby the accused did not plead guilty but claimed to be tried. -7- CRL.A No. 581 of 2016 Accordingly, the plea of each of the accused was recorded separately.

5. Subsequently, the prosecution let in evidence by subjecting to examination of PW-1 to PW-5 and got marked several documents as per Exs.P1 to P5 inclusive of M.Os.1 to

5. Subsequent to closure of the evidence on the part of the prosecution, the accused were examined as required under Section 313 of Cr.P.C. for enabling them to record the incriminating statements appearing against them. But the accused had declined the evidence of the prosecution witnesses adduced so far. Accordingly it was recorded. Thereafter, the accused were called upon to adduce defence evidence if any, as contemplated under Section 233 Cr.P.C. However, the accused were not inclined to lead any defence evidence. Accordingly it was recorded. Exhibits D1 and D2 being the Statements of PW-2 and PW-3 respectively, are the list of documents which were got marked on behalf of the defence.

CRL.A No. 581 of 2016

6. Subsequent to closure of evidence, the Trial Court had heard the arguments advanced by the learned Public Prosecutor and so also, the counter arguments advanced by the defense counsel and had analysed the evidence of PW-1 and so also the contents of the complaint as per Exhibit P1. It has been narrated in the said complaint as to how the incident had taken place on 13.07.2012 at around 9.00 p.m. near the shop of one Shankar. It is stated that the accused persons, with a common intention of eliminating the complainant / PW-1 and the injured / PW-2, had abused them in filthy language and they are said to have picked up a quarrel with PWs 1 and 2. During the said scuffle, Accused No.2 is said to have assaulted the injured / PW-2 with means of a razor / MO-1 and inflicted injuries over his person. The cloths of PW-2 were got marked as MOs 4 and

5. PW-4 / Dr. Harish S being the Medical Officer, has given evidence on the part of the prosecution and stated that he had given first aid to PW-2 / Srinivas and thereafter he had referred the said injured / PW-2 to the Department of -9- CRL.A No. 581 of 2016 Surgery and based on the report of the OMF Surgeon, he had given Certificate as per Exhibit P3. The case was registered by PW-5 / Head Constable. However, the Investigating Officer who carried the investigation and laid the charge-sheet against the accused persons, has not been subjected to examination on the part of the prosecution in order to prove the offences leveled against the accused. The Trial Court has observed that it is stated in the evidence of PW-2 and PW-3 that all accused persons had caught hold of PW-1. Further, that Accused Nos.1, 3 and 4 had caught hold of PW-2 while Accused No.2 had assaulted him. However, the said fact is missing in the complaint lodged by the complainant as per Exhibit P1. Further, the evidence of PW-1 and PW-3 revealed that the shirt worn by PW-1 was torn, but was not seized by the I.O. PW-1 / complainant has asserted that at the time of the scuffle, apart from them nobody had come to the spot. However, PW-2 / injured has stated in the cross-examination that at the time of scuffle, 5- 6 persons came to the spot apart from them and so also PW-

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3 had stated in the cross-examination that 3-4 persons had witnessed the incident. PW- 1 / complainant had stated in his examination-in-chief that when the Police came to the spot, he produced the razor before the Police, which was lying at the spot. PW-2 has stated in the cross-examination that his clothes were seized by the police in the hospital where they showed M.O.1 to him. However, the evidence of PW-5 reveals the fact that he had seized M.O.1 to 5 at the spot. The Trial Court, on going through the entire evidence of PW-1 to PW-3 coupled with the evidence of PW-5, had found that there were number of material contradictions and material omissions amounting to contradictions. Hence, the Trial Court had come to the conclusion that the evidence on record do not clear the clouds so as to accept the case of the prosecution beyond all reasonable doubt and has held that the same gestures the fact that all of them were close associates. Further, though independent witnesses are said to have witnessed the alleged incident as could be seen from the evidence PW-2 and PW-3, none of the independent

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witnesses have been examined by the prosecution and there is also no explanation forthcoming from the I.O. for the non- examination of independent witnesses. When independent witnesses were available at the spot, the Trial Court had opined that it was difficult to render conviction solely on the basis of the evidence of PW-1 to 3. Consequently, the Trial Court had rendered an acquittal judgment for offences under Sections 504, 307, 506 read with Section 34 of the IPC. Though the Public Prosecutor had relied upon various decisions in support of his case, the Trial Court had held that there being material contradictions and material omissions and many latches and infirmities in the evidence, and further independent witnesses not having been examined in the case, the Trial Court had held that the prosecution had utterly failed to prove the guilt against the accused beyond all reasonable doubt. Hence, the Trial Court had proceeded to acquit the accused from the alleged offences. It is this judgment which is under challenge in this appeal by urging various grounds.

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7. It is contended by the learned HCGP for the State by referring to the evidence of PW-1 and so also the evidence of PW-2 and PW-3. It is stated that based upon the complaint at Exhibit P1, criminal law was set into motion by recording an FIR. CW-10 / PSI had conducted thorough investigation and laid the charge-sheet against the accused persons. Subsequent to committing the case to the Court of Sessions, the prosecution has let in evidence by subjecting to examination PW-1 to PW-5 and got marked Exhibits P1 to P5 inclusive of material objects namely MO-1 to MO-5. He contends that the impugned judgment and order of acquittal rendered by the Trial Court is contrary to law, facts of the case and the evidence on record and hence is liable to be set aside.

8. It is further contended by the learned HCGP that the learned Trial Judge has not properly analyzed the evidence of PW-1 / complainant, who being the eye witness to the incident and attester to the seizer mahazar. The Trial Court has also failed to appreciate the evidence of PW-2 / injured,

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PW-3 / eye witness and PW-4 / the Doctor, who had examined the injured person and got issued wound certificate as per the Ex.P-3. It is contended that the Trial Court while acquitting the accused persons, has failed to notice that the evidence of PW-2 is corroborated by the evidence of PWs 1 and 3. The learned Trial Judge has acquitted the accused solely on the ground that no independent witnesses have been examined by the prosecution. However, the learned Trial Judge has failed to appreciate the fact that though PWs-1 and 3 are interested witnesses, their testimony cannot be rejected solely on the said ground but their evidence could be taken into consideration with due care and scrutiny. It is also contended that the learned Trial Judge has failed to appreciate the fact that though incriminating material evidence has been read over to the accused under Section 313 of Code of Criminal Procedure, the Accused has not offered proper explanation to the same. Thus, it is contended that viewed from any angle, the impugned

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judgment and order of acquittal rendered by the Trial Court for the offences charged against them is otherwise illegal, erroneous and deserves to be set aside by this Hon'ble Court. On all these premise, learned HCGP for the State seeks for intervention and thereby to reverse the acquittal judgment rendered by the Trial Court by considering the grounds urged in this appeal.

9. Contrary to the arguments advanced by the learned HCGP for the appellant / State, learned counsel for the accused / respondents herein has given more concentration to the evidence of PWs 1, 2 and 3. PW-2 is the injured relating to the injuries inflicted over his person as indicated in the Certificate at Exhibit P3. MO-1 / razor is the material object said to have been seized by the Investigating Officer during the course of investigation. PW-5 / Head Constable is the Investigating Officer in part and CW-10 /PSI is the Investigating Officer who had conducted further investigation and after completion of investigation, he had laid the charge sheet against the accused. However the said

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CW-10 has not been subjected to examination in this case. Further, only interested witnesses have been examined in the present case on hand and not even a single independent witness has been subjected to examination in order to prove the guilt of the accused. Non-examination of any independent witnesses including the Investigating Officer who had completed the investigation and filed the charge- sheet against the accused, has become fatal to the case of the prosecution. Hence, it is contended that the Trial Court has rightly acquitted the accused for the alleged offences.

10. The Trial Court has noticed material contradictions and material omissions amounting to contradictions and many latches and infirmities in the evidence of the witnesses which did not inspire confidence in the mind of the Court. Further, in view of the absence of the evidence of independent witnesses who were very much available at the spot, it is contended by the learned counsel for the accused that the Trial Court has rightly held that the evidence on

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record was insufficient to hold that the allegations leveled against the accused were gospel truth.

11. Therefore, the learned counsel for the respondents/accused emphatically submits that the prosecution has failed to prove the guilt against the accused beyond all reasonable doubt and hence the Trial Court as rightly rendered an acquittal judgment. Therefore, in this appeal, it does not arise to call for interference as sought for by the State. Therefore, the learned counsel seeks that the appeal be dismissed as being devoid of merits.

12. In the context of contentions advanced by the learned HCGP for the State and so also the counter arguments advanced by the learned counsel for the accused / respondents, it is relevant to refer to the incident which occurred on 13.07.2012. On 11.7.2012, PW-1 / complainant Pradeep S/o. T.N. Puttaswamy and PW-2 / Srinivasa were travelling in a tempo at Garibi Site where tar was being newly laid under the Suvarna Grama Yojana Scheme. Since there was a break in the tar, PWs 1 and 2

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had scolded those workers who had done the said shabby work. The said fact was informed to Accused No.1 / Ramaraju. Hence, it is stated that on the previous day of the incident in the night, Accused No.1 / Ramaraju had abused PWs 1 and 2 who had complained about the shabby work in laying the tar, in filthy language. However, PWs 1 and 2 having heard the same, had remained silent as it would lead to a scuffle. Further, on 13.07.2012 at about 9.00 p.m., the PW-1 / complainant, PW-2 and CW-3 to 6 were talking with each other near the shop of Shankar and that at that time, all the accused persons forming an assembly, had gone there and started abusing them in filthy language and also tried to assault them. It is stated that Accused Nos.1 and 3 caught hold of PW-1 and dragged him to and fro by holding his shirt. Further, accused persons had assaulted PW-2 / Srinivas on his neck with a razor and that when PW-2 tried to escape, he was assaulted with razor on his cheek and that again Accused No.2 / Mutthuraju is said to have assaulted PW-2 / Srinivas with razor on his lip and near right eye and

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caused injuries with an intention to murder Srinivas. It is stated that while PWs 1 and 2 and their friends were running away from the spot to escape from the clutches of the accused persons, the said accused are said to have threatened PW-1, PW-2 and others with dire consequences. Thereafter, it is stated that CW-3 who is cited as a witness in the charge-sheet, had taken the injured Srinivasa / PW-2 on his motorcycle to the hospital for treatment and thereafter complaint was lodged against accused persons. Based on the complaint filed by the complainant who was examined as PW-1, criminal law was set into motion by recording an FIR by one K.M. Nagaraj / PW-5 as per Exhibit P5. The said PW-5 had conducted investigation in part and then had handed over the case file to C.W.10 i.e., P.S.I. of Rural Police Station, Mandya. C.W.10 / Investigating Officer having investigated the case, after recording the statement of witnesses and so also drawing the mahazar in the presence of panch witnesses and after securing the Wound Certificate, had laid the charge-sheet against the accused persons

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before the Committal Court for the offences reflected therein and the case was committed to the Court of Sessions for trial. The trial Court, thereafter had framed charge against the accused for offences under Sections 504, 307, 506 read with Section 34 of the IPC. The prosecution had subjected to examination witnesses PW-1 to PW-5 and got marked several documents as per Exs.P1 to P5 inclusive of M.Os.1 to

5. After recording the statement of the accused under Section 313 of the Cr.P.C., the Trial Court had framed points that arose for its consideration and answering the points in the negative, proceeded to acquit the accused for the alleged offences.

13. The case was registered by PW-5 / Head Constable. However, the Investigating Officer who carried the investigation and laid the charge-sheet against the accused persons, has not been subjected to examination on the part of the accused in order to prove the offences leveled against the accused. This is a major lapse on the part of the prosecution.

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14. Further, the evidence of PW-2 and PW-3 reveals that all accused persons had caught hold of PW-1 / complainant. It is also revealed from the evidence that Accused Nos.1, 3 and 4 had caught hold of PW-2 while Accused No.2 had assaulted him. However, the said fact has not been stated in the complaint lodged by the complainant as per Exhibit P1 at the first instance. Hence, it can be assumed to be a development while giving evidence by PWs 1, 2 and 3. Evidence of PW-1 and PW-3 revealed that the shirt worn by PW-1 was torn, but was not seized by the Investigating Officer. PW-1 / complainant had asserted that at the time of the scuffle, apart from them nobody had come to the spot. However, PW-2 / injured had stated in the cross-examination that at the time of scuffle, 5-6 persons came to the spot apart from them and so also PW-3 had stated in the cross-examination that 3-4 persons had witnessed the incident. PW- 1 / complainant had stated in his examination-in-chief that when the Police came to the spot, he produced the razor before the Police, which was

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lying at the spot. PW-2 has stated in the cross-examination that his clothes were seized by the police in the hospital where they showed M.O.1 to him. However, the evidence of PW-5 reveals the fact that he had seized M.O.1 to 5 at the spot. The Trial Court, on going through the entire evidence of PW-1 to PW-3 coupled with the evidence of PW-5, had found that there were number of material contradictions and material omissions amounting to contradictions. Hence, the Trial Court had rightly opined that the evidence on record do not clear the clouds so as to accept the case of the prosecution.

15. Further, though independent witnesses are said to have witnessed the alleged incident as could be seen from the evidence PW-2 and PW-3, none of the independent witnesses have been examined by the prosecution and there is also no explanation forthcoming from the Investigating Officer for the non-examination of the independent witnesses. When independent witnesses were available at the spot, it was necessary for the prosecution to have

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examined those independent witnesses in order to establish the case of the prosecution. Consequently, there is justification in the acquittal judgment rendered by the Trial Court for offences under Sections 504, 307, 506 read with Section 34 of the IPC.

16. PW-4 / Dr. Harish S being the Medical Officer, has given evidence on the part of the prosecution and stated that he had given first aid to PW-2 / Srinivas and thereafter he had referred the said injured / PW-2 to the Department of Surgery and based on the report of the OMF Surgeon, he had given Wound Certificate at Exhibit P3. The said Wound certificate at Exhibit P3 reveals the following injuries:

1) Lacerated wound 3 x 0.2 cm present over upper lateral aspect of right perioorbital region.

2) Lacerated wound 4 x 0.2 cm. present over lower lip horizontally.

3) Lacerated wound 8 x 0.2 cm. present transversely across left cheek region of face.

4) Lacerated wound 12 x 2 cm. present obliquely across the left mandibular border of face.

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Apart from the same, dental diagnosis disclosed that there was cut lacerated wound of left cheek. All the above mentioned injuries were certified by the Doctor to be simple in nature.

17. The only weapon said to be used by the accused to cause the above cited injuries is said to be MO-1 / a razor. However, it is to be noticed that when a razor is used as a weapon to cause hurt to a person, it leads to incised wound / injuries but not lacerated injuries. However, as per the opinion of the Doctor, the injuries caused are said to be lacerated injuries. Hence, we find that there is inconsistency in the weapon that is alleged to have been used, namely a 'razor' to have caused the lacerated injuries indicated in the Wound Certificate at Exhibit P3. Even taking into consideration this fact, the accused persons are required to be acquitted of the alleged offences.

18. The further fact to the noticed is that when the Wound Certificate revealed that the injuries were simple in nature, the offence under Section 307 of the IPC, 1860

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relating to having made an attempt to take away the life of the injured, ought not to have been leveled against the accused. Even on going through the Wound Certificate at Exhibit P3, a prudent man can infer that no ingredients have been made by the prosecution to establish the allegation of the accused having made attempt to take away the life of the injured. According to Section 307 IPC, intention or knowledge of the accused must be such as necessary to constitute the offence. But the scope and applicability of Section 307 IPC as regards the intention to kill or knowledge of death in terms of Section 307 IPC is a question of fact and not one of law. But it would all depend on the facts of a given case. But the important thing to be borne in mind in determining the question is whether the offences under Section 307 IPC is made out relating to the intention and not the injury. Even it is not necessary that the injury must cause death. What is material to attract the said offence under Section 307 of the IPC is the guilty intention or knowledge with which the act was done,

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irrespective of its result. The intention and knowledge are the matters of inference from the totality of circumstances and cannot be measured merely from the results. These are all the issues that have been addressed by the Hon'ble Supreme Court of India in the judgment of Vasant Virthu Jadhav vs. State of Maharashtra (1997) 2 Cro,es 539 (Bom).

19. In the instant case, the prosecution has failed to establish the ingredients relating to offences under Sections 307 of the IPC, 1860 relating to the accused having made an attempt to take away the life of the injured. But in the Wound Certificate issued by PW-4 as per Exhibit P3, the Doctor has opined that based upon the diagnosis, the injuries inflicted were simple in nature. Then the offence under Section 307 of the IPC has become diluted and rightly the Trial Court has arrived at a conclusion that the prosecution has failed to establish the guilt against the accused by facilitating worthwhile evidence.

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20. Insofar as the offences under Section 504 of the IPC, 1860 relating to intentional insult with intent to provoke breach of the peace, this provision of law comprises certain ingredients namely, a) intentional insult b) the insult must be such as to give provocation to the person insulted and c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will provoke any other person and such provocation will cause to break public peace or to commit any other offence, in such a situation, the ingredients of Section 504 IPC are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Section 504. ((See

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Fiona Shrikhande vs. State of Maharashtra (AIR 2014 SC

957)).

21. In Section 506 of the IPC, 1960, this offence indicates two parts. The first part states that, whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. The second part states that, if threat be to cause death or grievous hurt, or to cause destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

22. Even on a close scrutiny of the evidence of PW-1 to PW-3 coupled with the evidence of PW-4 / Doctor who issued the Wound Certificate at Exhibit P3 and the evidence of PW-5 who is the I.O. in part, we find that no essential

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elements of this provision or even the ingredients of this provision either Part 1 or Part 2 has not been established by the prosecution by putting forth acceptable evidence. The prosecution has failed to even establish commission of offences under Section 506 of the IPC even as regards infliction of injuries narrated in the complaint at Exhibit P1. PW-4 / Doctor has opined that the injuries are simple in nature. But on a close scrutiny of the evidence of PW-1 to PW-3 and so also the evidence of PW-4 and PW-5 and on a thorough scanning of the evidence on the part of the prosecution, we are of the opinion that the prosecution has failed to establish the guilt against the accused in respect of all the three counts.

23. Insofar as Section 34 of the IPC, 1860 relating to common intention, if common intention is proved but no overt act is attributed to the individual accused, Section 34 of the IPC will be attracted as essentially it involves vicarious liability. But if participation of the accused in the crime is proved and common intention is absent, Section 34 IPC

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cannot be invoked. In other words, it requires a pre- arranged plan and pre-supposes prior concert, therefore, there must be prior meeting of minds. Only then Section 34 of the IPC would be attracted. (See Suresh Sankharam Nangare vs. State of Maharashtra ((2012) 9 JT 116 : 2012 (9) SCALE 245).

Common intention means a pre-oriented plan among the felonies / accused and acting in pursuance of the plan of action. Thus common intention must exist prior to the commission of the act in a point of time. (See Shyamal Ghosh vs. State of West Bengal (AIR 2012 SC 2539) Further, insofar as common intention concept is concerned, the burden lies on the prosecution to prove that action of participation of more than one person for commission of criminal act was done in furtherance of common intention at a prior concert. These are all ingredients which are very much necessary to prove the guilt of the accused.

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24. In the instant case, PW-2 / Srinivas has given evidence on the part of the prosecution. But on a close scrutiny of the evidence of PWs 1, 2 and 3, it is seen that their evidence runs contrary to the evidence of PW-4 / Doctor who provided treatment to the injured / PW-2 and further contrary to the evidence of PW-5 / I.O. in part. But in the instant case, the prosecution had not made any endeavour to examine independent witnesses who have been cited in the charge-sheet and has not even made any venture to secure the Investigating Officer, that is CW-10 who has been cited as a witness, to prove the guilt against the accused for the alleged offences.

25. Further, in view of the fact that PW-4 / Doctor having certified that the material object razor had caused lacerated wound instead of incised wound on the injured / PW-2, also creates suspicion in the mind of this Court and we find that the evidence on the part of the prosecution is camouflaged and somersault, which is evident from the Wound Certificate issued by the Doctor.

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26. Therefore, in the totality of the circumstances, even a prudent man can arrive at a conclusion that the prosecution has failed to establish the guilt against the accused as regards the offences in order to secure conviction. But in the instant case, the Trial Court has appreciated the evidence in a proper perspective and has arrived at a conclusion by assigning justifiable reasons and so also sound reasons wherein it is held that the prosecution has failed to establish the guilt of the accused by facilitating cogent, corroborative, positive and consistent evidence in order to probabilise that the accused alone had inflicted with injuries over PW-2 / Srinivas as narrated in the complaint at Exhibit P1. Therefore, in terms of the aforesaid reasons and findings, we are of the opinion that the appeal does not require any intervention as sought for. Consequently, the appeal deserves to be dismissed as being devoid of merits. In terms of the aforesaid reasons and findings, we proceed to pass the following:

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ORDER The appeal preferred by the appellant / State under Section 378(1) and (3) of the Cr.P.C. is hereby rejected. Consequently, the judgment of acquittal rendered by the Trial Court in S.C.No.91/2013 dated 05.12.2015 is hereby confirmed.

Sd/-

JUDGE Sd/-

JUDGE KS