Karnataka High Court
The State By The vs Nandeesha on 2 February, 2022
Bench: K.Somashekar, P.N.Desai
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF FEBRUARY, 2022
PRESENT
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
AND
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL APPEAL NO.1349/2016
BETWEEN:
THE STATE BY THE
AKKURU POLICE STATION
CHANNAPATNA TALUK
RAMANAGARA DISTRICT
REPRESENTED BY STATE
PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001 ... APPELLANT
(BY SRI. RAHUL RAI K, HCGP)
AND:
NANDEESHA
S/O. SOMALINGEGOWDA
32 YEARS, R/AT. HANIYURU VILLAGE,
CHANNAPATNA TALUK
RAMANAGARA DISTRICT - 571 501 ... RESPONDENT
(BY SRI. P.PRASANNA KUMAR, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AGAINST
THE IMPUGNED JUDGMENT AND ORDER OF ACQUITTAL DATED
12.02.2016 PASSED BY THE LEARNED PRL. DIST. AND S.J.,
RAMANAGARA IN S.C.NO.132/2010 THEREBY ACQUITTING THE
RESPONDENT-ACCUSED OF THE OFFENCES P/U/S 448, 504, 324,
506, 307 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR FURTHER
ARGUMENTS THIS DAY, P.N.DESAI J., DELIVERED THE
FOLLOWING:
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JUDGMENT
This appeal arises out of judgment passed in S.C.No.132/2010 dated 12.02.2016, wherein the respondent/accused was acquitted for the offence punishable under Sections 448, 504, 307, 324 and 506 of Indian Penal Code, 1860 (for short hereinafter referred to as 'IPC').
2. The brief case of the prosecution is that on 08.05.2010 around 06:00 p.m. at Haniyuru Village, the accused tress-passed into the house of Smt. Vijayalakshmi with the previous enmity pertaining to landed property and abused her in a filthy language. It is further contended that the accused with an intention to commit murder of Smt. Vijayalakshmi, tried to assault her with a knife. When Smt. Vijayalakshmi tried to avoid the same, she sustained injuries to her left index finger. One H.S.Nithish Gowda - PW.2 came to rescue Smt. Vijayalakshmi, but the accused also assaulted PW.2 on his neck and left cheek with the 3 knife and caused bleeding injuries. In this regard, Smt. Vijayalakshmi lodged a complaint before the Akkur Police Station on 08.05.2010 at 08:45 p.m. The Station House Officer/PW.8 who was present in the police station, received the complaint as per Ex.P1 and registered the case in Cr.No.90/2010 for the offence punishable under Sections 448, 504, 324, 307 and 506 of IPC. After registering the FIR/Ex.P6, the same was sent to Court.
3. It is the further case of the prosecution that Sri. M.L.Krishnamurthy, PSI who was examined as PW.9 took up further investigation. He visited the place of offence on 09.05.2010 and conducted the scene of offence panchanama and drew the mahazar as shown by victim - Vijayalakshmi and one Somegowda who are the panchas as per Ex.P2. PW.9 also seized M.Os.1 to 3. PW.9/PSI also recorded the statement of witnesses and thereafter handed over further investigation to one Mahadevappa - PSI. 4 Thereafter, PW.7 - M.P.Jayaramu, PSI collected the wound certificate. He has also recorded the statement of witnesses and after completion of investigation, he filed the charge sheet against the accused for the offence stated above. Thereafterwards, said case was committed by the learned Magistrate after complying the provisions of Sections 207, 208 and 209 Code of Criminal Procedure, (for short hereinafter referred to as 'Cr.P.C.') to the court of sessions for trial.
4. Learned Sessions Judge after hearing prosecution and accused, framed the charge against the accused for the offences punishable under Sections 448, 504, 324, 307 and 506, IPC. Prosecution got examined nine witnesses as PWs.1 to 9, got marked six documents as Exs.P1 to P6. On behalf of accused, no witnesses were examined, but two documents were got marked as Exs.D1 portion of statement of PW.4 and D2 - deposition copy. Prosecution also got identified three material objects as M.Os. 1 to 3. 5 Thereafter, the statement of the accused as required under Section 313 (b), Cr.P.C. was recorded. The accused totally denied the circumstances appearing against him in the evidence of prosecution witnesses. The accused has not chosen to lead any defence evidence. After hearing arguments, the learned Sessions Judge acquitted the accused which is now assailed by the State in this appeal.
5. Heard Sri Rahul Rai. K, learned HCGP for the State and Sri P.Prasanna Kumar, learned counsel for the respondent/accused.
6. Learned HCGP argued that the impugned judgment and order of acquittal recorded by the Trial Court is contrary to law, facts of the case and the evidence on record. He further argued that the reasons assigned by the Trial Court while passing the judgment are erroneous. It is stated that PW-1 is the injured eyewitness and she has stated about the assault on her and injuries sustained by her. PW-2 is 6 also an injured witness and has stated about the assault. Though the prosecution has proved the allegations beyond all reasonable doubt, but the acquittal order passed by the Trial Court has resulted in miscarriage of justice. Learned HCGP further submitted that the learned Sessions Judge has not properly appreciated the evidence on record even though the prosecution witnesses have supported prosecution case. Therefore, learned HCGP argued that since the prosecution has proved its case beyond all reasonable doubt, the judgment of acquittal passed by the Trial Court which is not based on any reasons, needs to be interfered with by this Court and therefore, he prays for setting aside the same and to convict the accused and impose appropriate sentence in accordance with law.
7. Against this, Sri P.Prasanna Kumar, learned counsel for the accused argued that the learned Sessions Judge has rightly appreciated the evidence in 7 proper perspective. There is a civil dispute between PW-1 and the accused. The evidence on record indicates that the prosecution has failed to prove the charges levelled against the accused beyond all reasonable doubt, PW-1 tried to falsely implicate the respondent/accused due to ill-will and enmity. Thus, he submits that there are inconsistencies in the prosecution theory which go to the root of the case. The Trial Court after hearing both sides, and considering the oral and medical evidence, has rightly come to the conclusion that the accused is entitled for the benefit of doubt. Accordingly, the learned Sessions Judge rightly acquitted the accused. The learned counsel further submitted that this Court being an Appellate Court, while considering the appeal against judgment of acquittal, unless the judgment of the Trial Court is shown to be illegal, capricious or not based on settled principles regarding appreciation of evidence, the Appellate Court will be slow in interfering with the 8 judgment of acquittal. With these main arguments, the learned counsel prayed for dismissal of the appeal.
8. We have perused the judgment passed by the learned Sessions Judge.
9. Learned Sessions Judge has raised two points for consideration. The learned Sessions Judge has considered the evidence of each witness meticulously one by one. The Trial Court also referred to the previous criminal and civil cases which were decided and pending between the parties. Learned Sessions Judge has referred to the medical evidence on record and found that there are several material contradictions and inconsistencies in the evidence of the prosecution witnesses. He also found that PWs-1 and 2 being highly interested witnesses and inimical towards the accused, it is not safe to believe their version without independent corroboration, particularly in view of nature of injuries stated by the doctor compared to the nature of allegations. Accordingly, 9 learned Sessions Judge has given the benefit of doubt and acquitted the accused.
10. We have perused the appeal memo and also the entire evidence on record, both oral and documentary. This Court being an Appellate Court, is required to reappreciate the evidence on record. It is evident PW-1, Smt.Vijayalaklshmi is the complainant who is said to have set the criminal law in motion by lodging complaint as per Ex.P1. On a perusal of Ex.P1, it is seen that the incident occurred on 08.05.2010 at about 6.00 p.m. when she was in the house. At that time, accused-Nandeesha suddenly entered her house and started a quarrel. Accused asked PW-1 to transfer the land in his name, otherwise he will take away their life. Stating so, with the help of a knife, he tried to stab her. At that time, PW-1 sustained injury to her left index finger. Her son, PW-2, Nithishgowda came to rescue her, but he was also assaulted with knife. Both PW-1 and PW-2 tried to run away from the house 10 and at that time, neighbourers viz., Nagaraju, his wife Smt.Jayasheela, Smt.Susheelamma and Somegowda came to rescue them. When the people gathered there, accused threatened to take away their life and ran away. The oral evidence of PW-1 shows that it is quite contrary to her written complaint-Ex.P1. PW-1 has stated in her evidence that the accused suddenly entered the house and told that he will take away her life. She never stated about any abusive words used by the accused nor where he tried to assault her. After the assault, accused himself tried to run away and though CWs-3 and 4 tried to chase him, they could not catch him. This evidence shows that PW-1 has given a different version before Court when compared with her written complaint, Ex.P1. In her examination-in-chief itself, she has admitted that there was a site at Haniyuru village. There is a quarrel and dispute between them in respect of that property for the last two years. In cross-examination, PW-1 has stated that her husband is working in Police Department. She has 11 admitted that earlier also, she had lodged complaints against the accused and others at Channapatna Court. There were other two cases filed by her. She has given evidence in those cases. Even she denied her own deposition which is marked as Ex.D2 before the Court. She has admitted that her husband has also filed civil suit in respect of the said site against the mother of the accused and she denied the suggestion that the said suit was also dismissed, which is contrary to the evidence on record. The appeal filed in that behalf was also dismissed, so also the Miscellaneous Petition filed by her husband was dismissed. This shows that PW-1 tried to suppress the truth though her husband himself was party to those proceedings, as evident from a copy of the judgments and orders produced by the accused along with Section 313, Cr.P.C. statement. She has admitted that the accused is not residing in their village, but he used to visit the said village. PW-1 expressed her ignorance that the accused is working at Bengaluru. This shows that the 12 accused was not at all residing in their village. She has admitted that there were houses of other persons around her house. One Smt.Susheelamma is residing as neighbourer and there is house of Somegowda which is opposite to their house. She has admitted that there is a hotel near her house. She has also admitted that there was Panchayat election on the day of the incident. She has denied that her husband has supported PWs-4 and 5 on that day and she has denied that the accused and her brother-in-law have supported one Boregowda in the said election. She has admitted that there was ill-will between herself and the accused for the last 7-8 years. She has stated that herself and PW-2 went to the hospital around 7.30/7.45 p.m. and from there, they were taken to BGS Hospital. She has further stated that it was about 6.30/7.00 p.m. when the accused came to her house, and when he tried to run away, at that time, 4-5 persons came there, but she does not know their names. She has further stated that the knife was lying 13 in their house only. She has denied a suggestion that she has created the knife for the purpose of this case.
11. Contrary to her evidence, PW-2, her son has deposed in his evidence that himself and his mother were watching TV on 08.05.2010 at about 6.00 p.m. This again is a new version stated by this witness. He has stated that suddenly the accused came to their house. How he came, from where and from which place he came is not forthcoming. A simple general and vague statement is made that the accused came inside the house and when the accused tried to stab his mother, she tried to escape and sustained injuries to her left index and middle finger. PW-2 has stated that when he tried to interfere, he also sustained injuries. Then he himself and his mother went in an ambulance to the hospital and he has identified the material objects. In the cross-examination, he has denied that there was political enmity between them. He has also stated that he does not know who had 14 brought the ambulance. They went to BGS Hospital in a car. PW-2 has stated that he does not know which hand his mother was holding to rescue herself. He again stated that the accused quarrelled with his mother (PW-1) orally and that the quarrel took place for 5-10 minutes, but he never tried to pacify the accused. This again is a new version deposed by this witness which is not at all the prosecution case nor stated by PW-1. Therefore, the very presence of this witness at the time of the alleged incident is doubtful. He has further stated that he caught hold of the accused when the accused tried to assault him, at that time there was a scuffle between himself and the accused and he fell down and sustained injuries to his back and left hand. Again this is totally inconsistent and contrary to the theory of assault stated by PW-1 and also medical evidence. He has stated that when he screamed for help, none came and the accused ran away. So, the evidence of PW-2 is totally inconsistent 15 and contrary to the oral evidence of PW-1 and the contents of Ex.P1.
12. PW-3, Dr.Basavaraja has stated in his evidence that at about 10.00 p.m. on 08.05.2010, PW- 2 was brought by his father-Shivarudregowda with the history of assault and he found 3 injuries as mentioned in the wound certificate as per Ex.P4, which are as under:
"1. Incised wound of 7 cm x1.5 cms full thickness on left side of face involving lower lip and exposing tooth,
2. Superficial incised wound of 3 cms x 0.2 cms x 0.2 cms on upper part of neck, 4 cms lateral to midline on left side,
3. Cut lacerated wound of 2 cms x 0.2 cms x 0.2 cms on right great toe."
He found that all the injuries are simple in nature. He has also stated that on the same day, he examined PW-1 and found one incised wound 2 cms. x 0.3 cms x 0.2 cms on the web space of left hand index finger and middle finger and it was a simple injury as per the wound certificate-Ex.P5. The doctor has clearly opined that the injuries mentioned in Ex.P4 to PW-2 could not 16 be possible with the use of M.O.1 which is seized by the prosecution and which, according to PW-1, was used by the accused to assault her. Thus, it is seen that the medical evidence is totally inconsistent and contrary to the theory of assault. It is evident that M.O.1-knife is not a weapon which could cause injuries mentioned in Ex.P4. Therefore, the medical evidence further makes the theory of assault doubtful.
13. Further, PW-3 in his examination-in-chief has clearly stated that M.O.1 was not sent to him for his opinion to say whether the injuries could be caused with such an object. It is also stated that he has not measured the width of the sharp edge of M.O.1. He has clearly admitted that there is a possibility that any person falls suddenly on the bill-hook could possibly sustain injury No.1 shown in Exs.P4 and P5.
14. PW-4, Nagaraju according to the prosecution, is an independent eyewitness for the incident. In his evidence, he has stated that when he 17 was in the house, he heard some noise and he told his wife to verify what is happening. After hearing the screams of his wife, he also went there. He has stated that the accused was running by holding a knife in his hand and he caught hold of the accused. At that time, PWs-1 and 2 fell down in the gutter and when again they tried to run, at that time, accused assaulted PW-2 on his leg and ran away. Therefore, it appears this witness is a planted witness just to say something against the accused and it is not safe to believe his evidence. Further, prosecution has treated this witness as partly hostile and cross-examined him. But when again cross-examined by the accused side, he has clearly stated that he has not given a statement before police as per Ex.D1. So the evidence of PW-4 is also not helpful to the prosecution case in any way.
15. PW-5, Jaysheela is the wife of Nagaraj (PW-
4). She has also given evidence similar to that of PW-
4. She has stated that the accused was chasing PW-1 18 from their house and he tried to stab her on her abdomen and when PW-1 tried to stop it, she sustained injuries to her left hand. Again this evidence is totally inconsistent with the evidence of PW-1. According to this witness, the incident occurred in front of the house of PW-1 on the road, which is not at all the case of the prosecution. She never stated the presence of her husband at that time. Her cross-examination also indicates that it was darkness at that time and public had also gathered there, but she cannot say who rescued PWs-1 and 2. She has clearly stated that both PW-1 and PW-2 had fallen in the gutter and public lifted them. So it appears that PWs-1 and 2 sustained some injuries when they fell in the gutter, but not by the assault.
16. PW-6, Puttegowda is a witness for mahazar. He has stated that when he was going to the bus stop, police asked him to sign the mahazar in front of the house of PW-1. His cross-examination indicates that 19 he has not seen the seizure of M.O.1. PW-7, Jairam is the police sub inspector then and PW-8, Nagabhushan is the head constable who received the complaint and registered FIR. But on perusing the FIR-Ex.P6, though the case was registered on 08.05.2010 at about 8.45 p.m., FIR was sent to the Court on the next day i.e. 09.05.2010 at 11.00 a.m. This exorbitant delay in sending FIR to the Court, that too when the husband of PW-1 is a police official, creates a doubt about the veracity of the contents of Ex.P6, particularly when there is no explanation for such delay.
17. PW-9, M.L.Krishnamurthy, investigating officer, has denied that PWs-1 and 2 have not given statement before him stating that they fell in the gutter. So, the evidence of PW-9 and PW-7, Jairam in the light of the evidence placed before the Court creates a doubt about the investigation done by him.
18. On re-appreciation of the evidence placed by the prosecution with reference to the statement 20 filed by the accused under Section 313, Cr.P.C, it is evident that there is a civil dispute between the accused and PW-1 and her husband. It is also evident that the suit filed by the husband of PW-1 in respect of the site is dismissed; so also the appeal and miscellaneous petition are dismissed. There are other criminal cases filed by PW-1 against the accused and their family members. Therefore, it is evident that there is ill-will and enmity between PW-1 and the accused in respect of the property.
19. Admittedly, the accused is not residing in the same village. The evidence of PWs-1 to 4 are contradictory with each other when compared with the contents of Ex.P1. The oral evidence is inconsistent with medical evidence of the doctor and wound certificates at Exs.P4 and P5. The evidence of PWs-1 to 4 creates a doubt as to exactly where the incident took place. There are no records or evidence to show that the incident occurred inside the house of PW-1. 21 Further, though there are other independent witnesses and other villagers who had gathered there, but they have not been examined. The theory of assault stated by PW-1 and PW-2 is totally contrary to the evidence of the prosecution witnesses. It is evident that there might have been some quarrel between them and as stated by the witnesses, PWs-1 and 2 were lifted from the gutter. So, the possibility of them sustaining any injuries as stated in the wound certificates by falling on the ground or in the gutter cannot be ruled out. The theory of assault with M.O.1-knife cannot be believed.
20. It is settled principle of law that if there are two views possible from the evidence of the prosecution, the view that is favourable to the accused will have to be accepted. Admittedly, in this case, there is ill-will and enmity between the accused and PWs-1 and 2. This ill-will and enmity is like a double edged weapon which cuts either way. In the light of the evidence of PW-1 and PW-2 and the material 22 contradictions appearing in their evidence itself, the theory of trespass cannot be pleaded. There is absolutely no evidence that the accused tried to take away their life or to cause any injury as stated by the witnesses. There is no filthy word used by the accused or uttered by any of the witnesses. Therefore, due to family dispute or because of some quarrel, the possibility of falsely implicating the accused due to ill- will also cannot be ruled out. Therefore, as the prosecution evidence shows two views, then in view of settled principles, the view that is favourable to the accused will have to be accepted.
21. The Hon'ble Supreme Court in the case of SHARAD BIRDHI CHAND SARDA .v. STATE OF MAHARASHTRA1 while dealing with the above proposition, has held at paragraph 163 as follows:
"163. We then pass on to another important point which seems to have been completely missed by the High Court. It is 1 (1984) 4 SCC 116 23 well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh, [(1973) 2 SCC 808] this Court made the following observations (para 25 p.820):
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence."
22. As discussed above, learned Sessions Judge has given elaborate reasons and arrived at finding of acquittal. The said finding of acquittal cannot be interfered with by this court unless it is shown that the 24 judgment is perverse, erroneous and not based on settled principles regarding appreciation of evidence in criminal cases.
23. The Hon'ble Supreme Court in a decision in the case of Sampat Babso Kale and Another v. State of Maharashtra [(2019) 4 SCC 739], at paragraph 8 has held thus:
"8. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in the case of Chandrappa & Ors. v. State of Karnataka [(2007) 4 SCC 415], laid down the following principles:-
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate 25 court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.26
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
24. In view of the principles stated by the Hon'ble Supreme Court in the decisions referred supra, on re-assessing the entire evidence of prosecution witnesses and for the discussion made above, we are of the considered opinion that the prosecution has failed to prove the guilt of the accused beyond all 27 reasonable doubt. The learned Sessions Judge has considered the entire evidence meticulously and has come to a conclusion that prosecution has failed to prove the guilt of the accused beyond all reasonable doubt and acquitted the accused by giving benefit of doubt. We find that the judgment of acquittal passed by the trial court is neither illegal, perverse, erroneous nor the judgment has resulted in miscarriage of justice. Absolutely, there are no grounds to interfere in the judgment of acquittal. The appeal being devoid of merits is liable to be dismissed.
Accordingly, we pass the following ORDER
(i) The appeal is hereby dismissed.
(ii) The judgment of acquittal passed by the Principal District and Sessions Judge, Ramanagar, dated 12.02.2016 in S.C. No.132/2010 is hereby confirmed.
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(iii) Bail bonds executed by the accused, if any, stand cancelled.
(iv) Registry to send back the records to the concerned Trial Court.
Sd/-
JUDGE Sd/-
JUDGE HJ/vgh*