Karnataka High Court
Sri Annappa Virupakshappa ... vs State Of Karnataka on 10 August, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 10TH DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL NO.340 OF 2007
BETWEEN:
Sri. Annappa Virupakshappa Benakana Gowda,
By Sub-Inspector of Police,
Rattihalli Police Station,
Hirekarur Taluk,
Haveri District. ... APPELLANT.
(Shri M.B. Gundawade, Advocate for
Shri K.L. Patil, Advocate)
AND:
State of Karnataka,
By Sub-Inspector of Police,
Rattihalli Police Station,
Hirekarur Taluk, Haveri District. ... RESPONDENT.
(Shri V.M. Banakar, Additional State Public Prosecutor)
This Criminal appeal is filed under Section 374(1) of
the Code of Criminal Procedure, 1973 against the judgment
dated 23.01.2007 passed by the S.J., Haveri, in
S.C.No.56/2005 and convicting the appellant / accused No.3
for the offence punishable under Section 307 IPC and
sentencing him to undergo imprisonment for a period of
three years and also to pay a fine of Rs.50,000/- and in
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default, to undergo further rigorous imprisonment for one
year.
This appeal, coming on for hearing, this day, the court
delivered the following:
JUDGMENT
Heard the learned counsel for the appellant Shri M.B. Gundawade and the learned Additional State Public Prosecutor.
2. The brief facts are as follows:
That on 3.8.2004, at about 7.00 a.m., it was the case of the complainant, Shankaragouda Chennagoudra, that when he was standing in front of his house at Doddagubbi village, the appellant along with several others, had formed themselves into an unlawful assembly and being armed with deadly weapons, with a common object of committing riot and other offences, had abused the complainant, since he had intervened in a dispute between the accused and another group of persons and when the complainant tried to pacify the accused, the present appellant, who was arrayed as the third accused 3 in the complaint, had immediately stabbed him on the left side of his abdomen with a knife causing a bleeding injury, the complainant had fallen down, at which point of time, the other accused persons, namely Accused 1, 2, 4, 5 and 6 while hurling abuses at him, had assaulted him by punching and kicking him all over his body and while still abusing the complainant, had left the spot. It is on the basis of these allegations that a case came to be registered against the accused in CC.No.331/2005, which was later committed to the court of Sessions and numbered as S.C.56/2005.
3. On the basis of the charge-sheet and after hearing the accused, the court had framed charges. The accused had pleaded not guilty and claimed to be tried. Accordingly, the prosecution had examined 14 witnesses and had got marked Exhibits P1 to P14 and material objects were also produced. The defence in turn had produced Exhibits D1 to D8.
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4. On a consideration of the material evidence and the rival contentions, the following points were framed for consideration by the Trial Court:
"1. Whether the prosecution proves that accused persons having formed themselves into an unlawful assembly with a common object of committing criminal acts, did commit the alleged act of rioting, using obscene languages to provoke the complainant as alleged?
2. Whether the prosecution further proves that in furtherance of their common object they attacked the complainant and assaulted him?
3. Whether the prosecution further proves that A3 stabbed him on the left side of his abdomen and caused serious injury and he did it with an intention to do away with the life of the victim?
4. Whether the prosecution further proves that the accused have committed criminal intimidation by giving the life threat to the victim as alleged?5
5. Whether the guilt of the accused is proved beyond reasonable doubt?"
The Trial Court ultimately convicted and sentenced the Accused No.3 to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.50,000/- and acquitted Accused Nos.1 to 6. It is that which is under challenge by the appellant in the present appeal.
6. The learned counsel for the appellant would submit that the judgment of the court below suffers from various infirmities. The court below has failed in its duty to address the evidence in support of the charges in its right perspective and therefore, the judgment against the appellant has resulted in a miscarriage of justice. It is contended that there is no positive and incriminating evidence on the basis of which the findings of fact have been arrived at by the court below. It is alleged that the incident was a false and imaginary circumstance sought to be projected through the complainant, as there is no positive evidence in support of it. More particularly, the 6 learned counsel for the appellant would point out that even though it was alleged that all the accused had formed themselves into an unlawful assembly, this has not been established on the basis of any evidence. The further fact that it was alleged that all of them were armed with deadly weapons, is also not demonstrated with reference to any material evidence on record. The alleged knife used by the present appellant in causing injury to the complainant is also doubtful, since if Exhibits D4 and D5 are seen, it would indicate that on 4.8.2004, which is the next day after the incident according to the mahazar drawn up, one knife had been seized and was assigned Property Form No.37/2004, but inexplicably, on a perusal of Exhibit D5 which is dated 6.1.2005, yet another knife along with the banian said to have been worn by the complainant was seized and was assigned Property Form No.25/2005. These inconsistencies and the recovery of two knives without specifying as to which of the knives was used in the alleged incident and marked as MO-1, is therefore a discrepancy which is not sought to be explained by the 7 prosecution at all and the court has not taken any exception to such material being casually produced as being a weapon used in the commission of an offence. There were no blood stains on the said weapon nor has it been subjected to any forensic scrutiny, to hold that it was indeed the weapon used in the commission of the offence in causing a serious injury to the complainant. The sequence of events as narrated by the complainant are also doubtful. It was the complainant's case that he had collapsed on the ground immediately on being stabbed and the sustained assault by all the accused who had punched and kicked him relentlessly all over his body and yet PW-1 was in a position to remember that he had been brought to the Hirekerur Hospital from Rattihalli and he had even affixed his signature at two places in Exhibit D1, namely the Hospital Register, and the claim of the complainant that he was seriously injured and was unaware of the subsequent events, is not belied by the evidence to the contrary. The further circumstance that the incident has been reported at a much later point of 8 time to the police, is also shown to be doubtful. Since according to PW-1, the injured complainant was shifted to the Hospital in a police jeep and also to the Police Station, would clearly indicate that the police were made aware of the incident and regarding the injury caused to the complainant. It is also urged that it is significant to notice that as per the evidence of PW-14, the Police Sub- Inspector Tammanagouda Patil, he had received the First Information Report at about 6.00 p.m. on 3.8.2004 and it is hence, not sought to be explained with any cogent reasons as to how Exhibit P1 has come into existence on 4.8.2004 and therefore, it would point to there being due deliberation in the Exhibit P1 having come to light only on the next day and therefore, Exhibit P1 was inadmissible and was hit by Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to 'Cr.P.C.', for brevity).
7. The delay of more than 48 hours in the registration of the case is not at all explained by the 9 prosecution and this is a significant circumstance which casts a serious doubt as to the veracity of the complaint. Insofar as the material evidence that is produced, it is pointed out by the learned counsel that the alleged blood- stained towel and the banian worn by the complainant at the time of the incident were only seized after more than two months from the date of the incident and curiously, neither the shirt, banian nor the towel were stained with blood, when it is made out in the complaint that the complainant was stabbed in his abdomen with a deadly weapon and that he had lost much blood as a result of the same, would necessarily leave behind blood stains which were never found on the said material objects. The towel was not even produced and marked as an exhibit.
8. The poor explanation sought to be given by the wife of the complainant that when PW-1 was admitted to hospital, he did not have any clothes and therefore, the towel which was used immediately after the complainant was injured to stop the bleeding, was washed at the 10 hospital and therefore, the blood stains were washed away, is not readily believable, as blood stains cannot be easily washed away and the towel not even having been produced as a material object, is fatal to the case of the prosecution. It is also pointed out that Exhibit P8 discloses that earlier to 19.08.2004, the knife which was seized as being the weapon used in the assault of the complainant, an opinion was sought of the Medical Officer as regards the same and this would disprove the fact that the seizure of the knife was at the instance of the accused on 15.10.2004, which is two months later from the earlier date on which opinion was sought, renders the entire case of the prosecution as being doubtful. Even insofar as the hospital records produced at Exhibit P5, the entries pertaining to particular dates namely 6.8.2004 to 8.8.2004, there is no indication of any X-rays having been taken of the injury sustained by PW-1 and therefore, that is yet another aspect which has been glossed over by the Trial Court. Insofar as the evidence of the eye-witnesses is concerned, the learned counsel for the appellant would 11 take the Court through the evidence of those witnesses to demonstrate that having regard to the inconsistencies and the differences expressed by each of the witnesses, the same is also rendered doubtful. Hence, the learned counsel would submit that in view of these several discrepancies, to hold that the prosecution had proved the case beyond all reasonable doubt, is not tenable. Further, the counsel would also point out that the court below having though it fit to acquit all the accused except the appellant on the ground that there were no overt acts alleged against the said accused, with particular reference to which accused had caused what kind of injury and how, it was difficult for the Court to arrive at findings against the said accused, would also apply insofar as the present appellant is concerned. Even the fact that the only difference alleged against the present appellant was that he had used a knife to assault the complainant and when the knife that was sought to be produced is also not proved to be the very knife which was used, as already pointed out, the prosecution had chosen to seize two 12 knives and it is not even clear as to which of the knives is ultimately produced as MO-1. By the same token of reasoning, the alleged assault by the appellant would have to be disbelieved, in the absence of proof that a particular knife had been used in the commission of the offence and hence, the learned counsel would submit that the appeal be allowed.
9. The learned Additional State Public Prosecutor, on the other hand would vehemently oppose the appeal and would contend, that the several grounds now sought to be raised in the present appeal are not material grounds, which would warrant interference of this Court in the appeal. He would submit that, insofar as the contention that, there was a doubt as to the weapon, that was accepted as being a weapon that was used in the commission of the offence, in relation to Exs.D4 and D5, is not material. The learned prosecutor would contend that, in a given case, if a weapon used in the commission of an offence is irretrievable on account of the accused having 13 secreted the same or having disposed it of, in a manner that it cannot be retrieved, would not absolve the accused of a crime, if it could otherwise be established that, he had indeed committed the offence by reference to other material evidence. If this reasoning is applied, even if there was a mix up in the production of material object, namely the knife used for commission of offence, it would not be fatal to the case of the prosecution. On the other hand, the material object produced and marked before the Court as exhibit is only one knife, namely, M.O.No.1, wherefore, the appellant seeking to refer to exhibits D4 and D5, to indicate that the police, in the course of its investigation, had seized two knives and had sought to produce only one knife and as there was doubt as to the said knife being used as a weapon in the commission of the offence, as being doubtful, does not lead to a situation, where the accused can be absolved of the crime. The discrepancy can at best be attributed to a shoddy investigation and not necessarily enabling the accused to absolve himself of the crime.
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Insofar as the contention of the complainant being unconscious, when he was taken to the hospital from the scene of offence, firstly to Rattihalli, then to Hirekerur and thereafter to Davangere and that the contention of the complainant was that, he was not in a state of mind to be conscious of his whereabouts, but yet he had affixed his signatures in two places in the records as at Ex.D1 at Hirekerur, which was a document maintained by the hospital and therefore, the case of the prosecution that the complainant was unconscious and was in a bad state, is again not a circumstance which can be considered as being fatal to the case of the prosecution. He would submit that, even a person who is badly injured and who was unconscious may have lucid intervals of consciousness and it is quite possible that the complainant was in a position to affix his signature at Hirekerur, where he has taken much after the commission of the offence and therefore, no significance can be attached to the circumstance, that the prosecution had stated that the complainant was badly injured, but yet 15 had managed to affix his signatures to the said document. The further circumstance that there is doubt as to whether the police were made aware of the incident in the first instance and though the complaint is said to have been lodged later, in the circumstance that there is evidence on record to indicate that the complainant was transported from the place of offence in a police jeep and therefore, the police were fully aware of the incident and the complaint was filed after much deliberation to implicate the accused etc., is again seeking to place reliance on the statement of the wife of the complainant, who was an illiterate villager and would not know the difference between a police jeep and any other jeep and the complainant having been transported in a jeep, therefore, does not lead to the presumption that it was a police jeep.
Further, insofar as the contention that PW14 - Chandrappa, the police Sub-Inspector having received the First Information Report about the incident at 6.00 pm on 16 03.08.2004 and the Ex.P1 having come into existence on the next date being inadmissible in evidence, is again a circumstance, which is stretched beyond belief, in that, it is not unusual that Ex.P1 has been filed into the Court, therefore, the explanation offered that the FIR, which was being carried by the concerned on his motor cycle had run out of fuel and therefore, had to stop the vehicle at a village and thereafter, catch a bus to reach on the next morning to complete his assignment, is an explanation that has been negated, and it is not unusual for such a delay having occurred. The delay in lodging the FIR by itself cannot be considered as fatal to the case of the prosecution as the same has been explained.
Insofar as non-recovery of the blood stained towel and the recovery of the vest worn by the injured is concerned, the same is also not relevant as the explanation offered by the wife of the complainant, who in her ignorance had washed away the blood on the towel and the vest worn by the injured complainant not having 17 been subjected to a forensic examination is immaterial, since the recovery itself was after a belated period and would have served no purpose in sending the same for a forensic examination. Doubts sought to be cast on the medical reports and the nature of the injury by reference to the discrepancies in the entries contained in Ex.P5 etc., is again not a serious infirmity.
The learned prosecutor would place reliance on the following two decisions in support of his contention that a delay in lodging the FIR cannot be held to be fatal, when there is an explanation forthcoming.
(i) Padmanaban Vs. State of Tamilnadu (2009 SCC 290), wherein the Supreme Court has pronounced that the Courts cannot ignore the ground realities that in a given case, the relatives of the deceased would give priority to the treatment of severely injured person and their attempts would be to save his life and if there was delay on account of the same in lodging the FIR, the same could not be negated, as being fatal to the case of the prosecution.18
(ii) Dhanaj Singh and Others Vs. State of Punjab (2004 SCC (Cri.) 851 -wherein on facts of that case, it was expressed that, even if the investigation is defective, that would pale into insignificance when ocular testimony is found credible and cogent. In the case of defective investigation, the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.
Accordingly, the learned Public Prosecutor would submit that there is no warrant for interference with the findings of the Court below, having regard to the several grounds raised in the present appeal are peripheral and do not address the categorical findings of the Court below, which is on material evidence, which again otherwise be ignored.
10. Given the above facts and circumstances, it is to be seen that the incident, whereby the complainant was attacked by the appellant along with several others and which was witnessed by a large number of persons, who 19 have also testified to the same before the Court below, ought not to have enabled the Court below to acquit the several accused, on the ground that, though they were eye witnesses to the incident who had spoken about the participation of those accused, since the only person with a weapon was the present appellant and since there was clear evidence of his stabbing the complainant, which has resulted in injuries suffered by him and since there is no evidence of any specific overt act committed by each of the accused that, they should be acquitted, was unfortunate. However, the State not having chosen to challenge the acquittal of those accused, this Court does not enter upon the question whether it was justified in acquitting those accused. However, insofar as the present appellant being convicted for the offence and having been imposed the punishment of imprisonment of three years, is justified having regard to the circumstances of the case, as rightly pointed out by the Additional State Public Prosecutor, the several grounds raised in the petition have been addressed and are cogently explained, or otherwise justified. 20 Therefore, there is no warrant for interference by this Court.
The grounds raised in the appeal lacks merits and the appeal stands dismissed.
Sd/-
JUDGE KS/GAB