Karnataka High Court
State Of Karnataka vs Srinivasamurthy on 31 October, 2012
Bench: D.V.Shylendra Kumar, H.S.Kempanna
IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
Dated this the 31st day of October, 2012
PRESENT
THE HON'BLE MR JUSTICE D V SHYLENDRA KUMAR
AND
THE HON'BLE MR JUSTICE H S KEMPANNA
Criminal Appeal No 1027 of 2007 (DB-A)
BETWEEN:
STATE OF KARNATAKA BY
CENTRAL POLICE STATION ... APPELLANT
[By Sri N S Sampangi Ramaiah, HCGP]
AND:
1. SRINIVASAMURTHY
S/O P THYAPPA
AGED ABOUT 50 YEARS
2. ARUN
S/O SRINIVASAMURTHY
AGED ABOUT 30 YEARS
3. ANIL
S/O SRINIVASAMURTHY
AGED ABOUT 27 YEARS
ALL ARE R/AT NO.BS2
VENKATESWAMAPPA STREET
LALBAGH UPPARAHALLI
BANGALORE ... RESPONDENTS
[By M/s R P Chandrashekar, C H Hanumantharaya
and G Suresh, Advs.]
2
CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) & (3) OF
CRIMINAL PROCEDURE CODE, BY THE STATE PP FOR THE STATE,
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO GRANT
LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT DATED
17.02.2007 IN S.C. NO.694/2004 ON THE FILE OF THE PRESIDING
OFFICER, F.T.C.-V, BANGALORE - ACQUITTING THE RESPONDENTS
/ ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 307
R/W 34 OF IPC AND ETC.,
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
KEMPANNA J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the state preferred under Section 378(1) and (3) of CrPC is directed against the judgment and order dated 17-2-2007 passed in SC No 694 of 2004, by the Presiding Officer, Fast Track Court-V, Bangalore city, acquitting the respondents-accused of the offence punishable under Section 307 read with Section 34 IPC.
2. Brief facts of the case are:-
The respondents/Accused were tried on the charge for the offence punishable under Section 307 r/w Section 34 IPC. It is alleged that on 11-11-2002 at about 8.00 pm at No 104, Gram Seva Sangha, situated on R V Road, V V Puram, Bangalore, the accused, in furtherance of their 3 common intention of committing murder of PW1 R Vinay, on account of previous enmity that existed between them, A-1 stabbed with a knife on the neck of PW1, A-2 fisted with hands on his nose and kicked him with his leg, A-3 stabbed with a knife on his back and left side of the stomach, with such intention or knowledge and under such circumstances, if by that act they had caused death of PW1, they would have been guilty of murder and thereby they have committed the aforesaid offence.
3. It is the case of the prosecution that there is a temple of the deity Sri.Bisilmarmma and Sri Anjaneya Swamy which is commonly known as Upparahalli Grama Devathe situated at No.104, Grama Seva Sangha, R.V.Road, V.V.Puram, Bangalore. Surrounding the temple premises there are shop premises which are in the occupation of the tenants including A1, PW1 and his father PW5 in the case. The administration of the said temple is managed by a trust comprising of Executive Committee members. 4
4. It is the case of the prosecution that A1, who is the father of A2 and A3, was the president of the said temple trust since a long time and was in charge of the administration. It is also the case of the prosecution that PW1 is the son of PW5 who is cousin of A1.
5. It is further the case of the prosecution that in the year 2002, A1 on account of his ill-health resigned to the post of President of the temple trust and therefore, a new committee of the management was elected for the administration of the temple trust and in the said election, PW4 was elected as President of the trust, PWs1, 2, 5, 7 to 10 and A2 were elected as members of the committee of management of the trust.
6. It is further the case of the prosecution that after the new committee of management was elected, a meeting was convened in the temple premises on 10.11.2002. A1 did not attend the said meeting. On the other hand his son A2 who was member of the newly elected committee attended 5 the said meeting. In the said meeting it was resolved by the committee that all the temple properties which comprised of 14 shops which are in the occupation of different tenants including A1, PW1 and PW5 should be got vacated and made available to the temple trust for the purpose of building a complex. As per the resolution all the tenants except A1 agreed to vacate the shops which were in their occupation to enable the trust to build a complex. As A1 was not present in the said meeting, a further meeting was convened on 11.11.2002 i.e. on the next day at about 6 p.m. in the temple premises in order to request A1 to hand over the jewels of the deities of the temple and also to request him to vacate the shop which was in his occupation.
7. Accordingly, on 11.11.2002 the newly elected members of the managing Committee of the trust which comprised of PWs 1,2,4,5,7 to 10 and A2 assembled for the meeting. It is the case of the prosecution A1 who was ailing was brought to the said meeting by his son A3, who after 6 allowing A1 to attend the meeting stood outside the temple premises. After the meeting commenced, A1 handed over all the jewels of the deity to the newly elected President PW4. Thereafter as A1 had not attended the previous day's meeting, the elected members requested A1 to vacate the shop premises which was in his occupation to enable the temple trust to build a complex as per the resolution that they had passed the previous day. At that time a wordy dual took place between A1 on the one hand and the members of the Managing Committee of the trust on the other hand. Thereafter, A1 went outside the venue of the meeting. PW1 followed him and requested A1 to come for deliberations and to talk to the members of the Committee of management of the trust in respect of the decision that is taken the previous day. At that juncture, A-1 abused PW1 in filthy language saying that he is responsible for electing PW4 and thereafter an altercation took place between A-1 and PW1. In the said altercation, according to prosecution, A-1 took out the knife, which was in his possession, and 7 stabbed on the neck of PW1, A-2, who came there fisted on the nose of PW1 and kicked him with his leg, A-3 who was present at the said place took out another knife and stabbed on the back and also on the left side stomach of PW1. On account of the assault, PW1 sustained bleeding injuries on his person. Thereafter, A-1 to 3 took to their heels, leaving the weapons at the spot. After they left, PW1 was removed to Bangalore hospital in the car of PW4 by PW5 accompanied by PWs 2 and 6. There he was treated by the medical officer PW13 who in turn issued the wound certificate in respect of the treatment given as per ExP4.
8. It is further the case of the prosecution that while PW1 was undergoing treatment at Bangalore hospital, PW11-Head Constable came to the hospital, recorded his complaint as per ExP1, returned to the police station and produced the same before the investigating officer - PW12, who, on receipt of ExP1 from PW11, registered a case in Crime No 201 of 2002 for the offence punishable under Section 307 r/w Section 34 IPC against the accused and 8 issued FIR as per ExP3 to the jurisdictional magistrate. Thereafter, he proceeded to the scene of offence along with his staff and after observing the same, returned to the police station. According to him, later in the night at about 11.45 pm, he arrested A-1 and 3 and after completing their arrest formalities, got them remanded to judicial custody. On the next day i.e. on 12-11-2002, he proceeded to the spot of occurrence and there he drew up spot mahazar as per ExP2 in the presence of PWs 2 and 3 and also recovered MOs 2 and 3, which were lying at the spot. Thereafter, he recorded the statements of PWs 2 and 4 the next day. PW12 continuing the investigation recorded the statements of PWS 5, 6, 7 to 10, other witnesses and also collected the wound certificate of PW1 from PW13. In the meantime A2 appeared before the jurisdictional Magistrate armed with an anticipatory bail order granted in his favour and got released on bail. Thereafter, PW12 as the investigation had been completed, submitted final report against the accused before the jurisdictional 9 magistrate, who in turn committed the case of the accused to the court of sessions which in turn on receipt of the records secured the presence of the accused, framed charge as aforesaid against the accused to which they pleaded not guilty and claimed to be tried.
9. Prosecution, in support of its case, in all examined PWs 1 to 13, got marked ExP1 to 5 and MOs 1 to 3. Accused, during the course of cross-examination of the prosecution witnesses, have not got marked any defence exhibits.
10. After the closure of the prosecution evidence, the accused were examined u/s.313 Cr.P.C. They denied all the incriminating circumstances that were put to them found in the evidence of the prosecution witnesses. Thereafter, they were called upon to enter on their defence and to lead any evidence that they have in support of their case. In response to the same accused Nos.1 and 2 got themselves examined as DWs 1 and 2 and the medical 10 officer who had treated them as DW3. They got marked exhibits D1 to D8 during the course of their examination. Total denial is the defence of the accused.
11. The trial Judge on considering the oral and documentary evidence on record came to the conclusion that the prosecution has failed to establish the charge leveled against the accused beyond reasonable doubt and accordingly, by his judgment and order dated 17.2.2007 acquitted the respondents/accused of the charge leveled against them.
12. The State, being aggrieved by the said judgment and order of acquittal, is in appeal before this court.
13. Sri.N.S.Sampangiramaiah, learned Government Pleader, assailing the impugned judgment and order contended the evidence of PWs 1, 2 , 4, 6, 8 and 10 is cogent and consistent in respect of the overt acts of each of the accused and further the evidence of PWs 1 to 10 is also consistent in respect of the version of the motive as 11 projected by the prosecution. He also contended that the evidence of injured witness PW1 coupled with the ocular testimony of the prosecution witnesses is fortified by the testimony of PW13-medical officer. Despite these materials which has not been shaken in any manner in the cross examination, the learned trial Judge without appreciating the said evidence of the aforementioned witnesses in its right perspective, has erred in coming to the conclusion that the prosecution has failed to establish the charge leveled against the accused, which cannot be sustained and hence, a case for interference is made out.
14. Per contra, Sri.R.P.Chandrashekar, learned counsel appearing for the respondents/accused supporting the impugned judgment and order contended that though the material on record reveals as admitted by PWs.1 and 2 that A.1 and A.3 had sustained injuries in the very occurrence, none of the prosecution witnesses have explained the same, as such, the prosecution has 12 suppressed the genesis of the prosecution case. He further contended that the prosecution has not placed any evidence to show as to how Ex.P.1 has come into existence at Bangalore hospital on the night of the occurrence. In this connection, he submitted according to the prosecution Ex.P.1 is the complaint recorded by PW.11 at Bangalore hospital on the night of the occurrence, but there is no endorsement made on Ex.P.1 by PW.11 to that effect and his evidence also does not disclose that he recorded Ex.P.1 in the hospital on that night. On the other hand, his evidence reveals that he came to know about the occurrence through PW.1 on 12.11.2002 when he was deputed by the Investigating Officer in the case to the hospital. When according to the prosecution, Ex.P.1 is the first information, as to how it came into existence has not been properly proved by the prosecution. The earliest version of A.1 and A.3, which has been given by them before PW.12 and as admitted by him has been suppressed in the case. Therefore, as the genesis of the prosecution 13 itself has been suppressed, coupled with the fact that Ex.P.1 has come into existence in suspicions circumstances after due deliberation and as the same also does not clearly reveal the individual overt acts attributed to each of the accused and as there are material omission and contradiction in Ex.P.1, which has been brought on record and as the statement of some of the witnesses have been recorded five months after the occurrence, which does not inspire any confidence to place reliance on the testimony of the said witnesses, the learned trial Judge has not committed any error in coming to the conclusion that the prosecution has failed to establish the charge leveled against the accused and accordingly, the impugned judgment and order does not call for any interference.
15. Having regard to the aforementioned facts, rival contentions, evidence and the documents on record, the points that arise for our consideration are:
1) Whether the prosecution has established that the accused, on the date, time and place of 14 occurrence, in furtherance of their common intention, had attempted to commit murder of PW.1, viz., A.1 by assaulting him with a knife on his neck, A.2 fisting on the nose of PW.1 and kicking him with his leg and A.3 by assaulting with a knife on his back and left side of the stomach?
2) Whether the impugned judgment and order under appeal calls for any interference?
16. Re-point No.1:
It is the case of the prosecution that on the date, time and place of the occurrence, the accused in furtherance of their common intention, had attempted to commit murder of PW.1 viz., A.1 by assaulting with him with a knife on his neck, A.2 fisting on his nose and kicking him with his leg and A.3 assaulting him with a knife on his back and left side of the stomach. After the occurrence, the accused took their heels leaving the weapons at the spot. PW.1 was removed to Bangalore hospital by PW.5 in the car of PW.4 accompanied by PWs 2 and 6 and after they reached the 15 hospital, PW.1 was treated by PW.13- Medical Officer. While PW.1 was undergoing treatment, according to the prosecution, his complaint/first information as per Ex.P.1 came to be recorded by PW.11 - the Head Constable on that very night.
17. On a perusal of Ex.P.1, we do not find any endorsement having been made by PW.11 for having recorded Ex.P.1 on that night at the hospital. Though PW.1 claims that his complaint Ex.P.1 was recorded in the hospital on that very night, we do not find any material on record to show as to how his complaint Ex.P.1 came into existence on that very night at the hospital, as PW.11 does not whisper anything in his evidence that he had been to the hospital on that very night and recorded Ex.P.1 at the hospital itself. As already pointed out, there is no endorsement on Ex.P.1 also to show that it had been recorded by PW.11 at the hospital. PW.12 - Investigating Officer claims that he registered the case on the basis of Ex.P.1 which was produced before him at the police station 16 by PW.11 at about 9.40 p.m. on 11.11.2002. As to how PW.1 had been to the hospital to record Ex.P.1 is not at all explained or brought on record properly by the prosecution. In this connection, the evidence of PW.12 is also silent, inasmuch as his evidence does not disclose that he had directed PW.11 to go to hospital and record the statement of the injured PW.1. On the other hand, the evidence of PW.11 does reveal that he went to Bangalore hospital on 12.11.2002 as per the directions of PW.12 - Investigating Officer and at that time, he came to know that PW.1 had sustained injuries. In that view of the matter, as the prosecution has not placed any convincing evidence to show as to how Ex.P.1 came into existence on the very night of the occurrence i.e. on 11.11.2002 at 9.40 p.m., it is to be viewed with a blue eye and it has come to light under suspicious circumstances. We have come to this conclusion in view of the admission given by PW.12 that A.1 and A.3 had appeared before him on 11.11.2002 at 8.45 p.m. with injuries on their person and A.1 had filed a complaint 17 against PW.5 and his son PW.1, which is fortified from the fact that a case in Crime No.202/2002 had also been registered against PW.5 and his son PW.1.
18. The evidence on record reveals after the case came to be registered in Crime No.202/2002 A.1 and A.3 had been sent to the hospital along with a police constable by PW.12 and that they had been treated by DW.3 - Medical Officer at Victoria Hospital, Bangalore on that very night. Though this material is available on record to show that A.1 and A.3 had sustained injuries on their person on that very night, neither PW.1 - the injured witness nor any of the witnesses examined on behalf of the prosecution have whispered a word about the same. Non-explanation of the injuries sustained on the person of the accused on that very night in the very occurrence would go to show that the genesis of the prosecution case has been suppressed and therefore evidence of the prosecution witnesses does not inspire confidence to place any reliance on their testimonies.
18
19. It is in this background, we have to hold that Ex.P.1 has come into existence under suspicions circumstances, on which no reliance can be placed having regard to the hostility that existed between the accused on the one hand and PW.1 and PW.5 on the other hand. Apart from this, Ex.P.1 does not contain the details of the assault or motive aspect of the case as projected by the prosecution. Both PW.1 and eye-witnesses, who have been examined in the case, have made material improvements in their evidence, which have been brought out as omission in their evidence and proved through the evidence of PW.12 - Investigating Officer in the case. The evidence of DW.3 - Medical Officer discloses that A.1 and A.3 had sustained injuries on their person and as already pointed out this is fortified from the evidence of PW.12 - Investigating Officer, who had sent them to hospital for treatment.
20. In this background, taking into consideration that the genesis of the prosecution case has been suppressed by PW.1 and other ocular witnesses, we do not 19 find any justification to interfere with the impugned judgment and order of the acquittal passed by the trail Court, which in our view, is based on proper examination of the evidence on record. Even otherwise, on an independent examination of the evidence of the prosecution witnesses, we are of the view, it does not inspire any confidence to place reliance on their testimonies including that of the injured PW.1.
21. Therefore, taking from any angle, we do not find any justifiable ground to interfere with the impugned judgment and order of acquittal.
22. In view of the foregoing reasons, we do not find any merit in this appeal. Accordingly, we dismiss the same.
Sd/-
JUDGE Sd/-
JUDGE *pjk/rs/SA