Karnataka High Court
Shanker S/O Madhavrao Sangolgi Anr vs The State Of Karnataka on 10 July, 2017
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF JULY, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL APPEAL No.3727/2010
Between:
1. Shanker
S/o Madhavrao Sangolgi
Age : 41 Years
Occ : Member, Gram Panchayat.
2. Basappa
S/o Shankerappa @ Kashappa
Hudgi, Age : 51 Years
Occ : Agriculture
Both are R/o Kabirabadwadi,
Tq.Humnabad, Dist.Bidar.
... Appellants
(By Sri. Subhash Mallapur, Advocate)
And:
The State of Karnataka
Rep. by State Public Prosecutor
High Court Building,
Gulbarga.
... Respondent
(By Sri. P.S. Patil, HCGP)
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This Criminal Appeal is filed under Section 374(2)
of Cr.P.C. praying to set aside the judgment and order of
conviction and sentence dated 21.09.2010 passed in
Session's Case NO.57/2009 by the Prl. Session's Judge
at Bidar, thereby convicting the appellants / accused
no.1 and 2 for the offences punishable under Sections
506 and 333 R/w Sec.34 of IPC and the appellants
accused no.1 and 2 are sentenced to undergo SI for a
period of two years and to pay a fine of Rs.2,000/- each
in default, they shall undergo further SI for a period of
three months.
This appeal having been heard on 03.07.2017,
reserved for judgment and coming on for
pronouncement of judgment this day, the Court
delivered the following:-
JUDGMENT
This appeal is preferred by the accused nos.1 and 2 by assailing the judgment of conviction passed by the Prl. Sessions Judge, Bidar in S.C. No.57/2009 dated 21.09.2010.
2. The genesis of the case of the prosecution is that Udhavrao was working as a Secretary of Gram Panchayat, Beinchincholi. On 1.7.2008 when he was in the Gram Panchayat office and was discharging his 3 official duties, at about 1.15 p.m., Shankar S/o Madhavrao Sangolgi ( accused no.1 ) and Basappa s/o Shankreppa Hudgi ( accused no.2 ) came to the Gram Panchayat office. Accused no.1 asked the complainant to issue cheque pertaining to the house constructed by accused no.2 under Ashraya Yojana. In reply, complainant told that he would issue the cheque only after taking the permission of the President of the Panchayat and ascertaining whether house has been really constructed or not? Furiously by the reply, accused no.1 told at that time, that he was also Gram panchayat member. The complainant should obey what he would say or otherwise he would not leave him. By saying so, accused no.1 fisted on the nose of the complainant and as a result of the same he sustained bleeding injuries and thereafter again he fisted below his both the eyes. Accused no.2 abused the complainant in vulgar language and made the complainant to fall on the ground. When the complainant fell down, accused 4 no.2 put his leg on the chest and kicked him. Accused no.2 also gave a life threat to the complainant. At that time, one Basawaraj who was working as a Bill Collector and a panchayat member Vaijinath Dange, Baburao interfered and rescued the complainant. Thereafter, the complainant went to the police station and lodged the complaint. On the basis of the complaint, a case was registered and after investigation, charge sheet came to be filed.
3. After filing the charge sheet, the committal Court, by following the procedure laid down under Section 207 of Cr.P.C, committed the case to the Sessions Court. The Sessions Court after taking the cognizance secured the accused, after hearing them about the charge, framed the charges. Since, accused denied the charges and claimed to be tried, the trial was fixed.
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4. In order to prove its case, the prosecution got examined in all ten witnesses as P.Ws.1 to 10 and also got marked eight documents as per Exs.P-1 to 8. Thereafter, the statements of the accused were recorded under Section 313 of Cr.P.C. by putting the incriminating materials as against them, which they denied and they have not led any evidence on their behalf.
5. Thereafter on hearing the arguments of both the counsels, the impugned judgment came to be passed, whereunder accused nos.1 and 2 were convicted under Section 333 R/w Sec.34 of IPC. Assailing the said judgment and order, the accused are before this Court.
6. Heard the learned counsel for the appellants and the learned High Court Government Pleader on behalf of the State.
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7. At this juncture, the learned counsel for the appellant No.2 filed a memo along with death extract of the appellant No.2 reporting the death of appellant No.2. Since appellant no.2 has expired on 13.11.2013, this Court by the order dated 03.07.2017 abated the case against accused No.2.
8. The learned counsel for the appellant Sri.Subhash Mallapur, vehemently argued and contended that the impugned judgment is contrary to law and facts on record. He would further contend that, the Court below has not properly appreciated the evidence on record and has come to a wrong conclusion. He would contend that, the trial Court slipped into an error and erroneously passed the impugned order, which has resulted into miscarriage of justice. He would further contend that P.Ws.2, 5 and 9 are material eye witnesses, they have not supported the case of the prosecution, the Court below only on the basis of the 7 evidence of P.Ws.1 and 3 has wrongly convicted the appellant-accused No.1. He would further contend that, the Court below only on the interested testimony of P.W.1 and on the improved version of the said witness has wrongly convicted the accused. He would further contend that though it is alleged by the complainant that because of the fisting by the accused no.1 he sustained bleeding injuries and the clothes of P.W.1 were stained with blood, the same have not been seized as material objects. Even though there are so many lacunas in the case of the prosecution, ignoring the said facts, the trial Court came to a wrong conclusion and has convicted the accused - appellant. He would further contend that, the prosecution has utterly failed to prove that, the complainant was on official duty at the time of alleged incident. Even though there is no material to substantiate the said fact, only on assumption and presumption the trial Court has wrongly convicted the accused - appellants. On these grounds, he prayed for 8 allowing the appeal by setting aside the impugned order.
9. Per contra, the learned High Court Government Pleader Sri. P.S. Patil, vehemently argued and contended that P.Ws.1, 3 and 6 have clearly and categorically stated that the accused no.1 fisted on the nose of the complainant and accused no.2 also assaulted and kicked the complainant and thereby they have obstructed the Government servant while he was on duty and they have also caused the grievous hurt to the complainant. The evidence which has been produced by the prosecution clearly indicates that, the accused have committed the alleged offence. It is further contended that, by considering all these evidence and material on record, the trial Court has passed a well reasoned order. The accused - appellants have not made out any good grounds so as to interfere with the order of the trial Court. Hence, the order of the trial 9 Court deserves to be confirmed. On these grounds, he prayed for dismissal of the appeal.
10. In the background of the several contentions taken up by the learned counsel for the accused- appellants, now let me consider whether the accused appellants have made out any grounds so as to interfere with the order of the trial Court.
11. P.W.1 is the complainant and he has deposed that on 1.7.2008 at about 1.15 p.m., when he was in the Gram Panchayat office and was discharging his duties, both the accused came and accused No.1 asked to give the cheque pertaining to accused No.2, for having constructed the house under Ashraya Yojana, for which, he told that, after the arrival of the President and after physically verifying the place, he will give the cheque, to which, accused No.1 told that, he is also a Gram Panchayat member and why he is not heeding to his request and by saying so, accused No.1 by holding 10 the collar of the complainant fisted on his nose and thereafter again he fisted below both the eyes and in the meanwhile accused no.2 also by asking the cheque pulled him by holding his hand. He has further deposed that, for having fisted on the nose, he was having a bleeding injury and the shirt was also stained with blood and at that time, Basawaraj, the Bill Collector came and rescued him. This witness has been partly treated as hostile and during the course of cross- examination by the learned public prosecutor, he has further deposed that the accused no.2 has given a life threat and made him to fall on the ground and thereafter he put his leg on the neck and also kicked on the chest. During the course of cross-examination, he has deposed that, he lost consciousness for thirty minutes and he regained his consciousness after he has been poured water and at that time he was in the office of the panchayat. He has further deposed that, the 11 police have not seized the blood stained shirt. Except that the other suggestions have been denied.
12. P.W.2 is a bill collector and eye witness to the alleged incident. He has deposed that the complainant was discharging the duty in Gram Panchayat and he knows accused no.1 and 2. Accused no.1 was the member of Chincholi Gram Panchayat and he do not know anything about the incident and as such he has been treated as hostile.
13. P.W.3 is the Doctor, who has treated the complainant. He has deposed that, on 01.07.2008 at about 6.30 p.m., he examined P.W.1-complainant who has been brought by the police with a history of assault and he gave the first aid and thereafter sent to the District Hospital, Bidar. He has further deposed that, he has issued the wound certificate as per Ex.P-3. He has further deposed that on 24.7.2008 police brought a report from the District Hospital and he came to know 12 that the complainant had sustained fracture of left side of nasal bone.
14. During the course of cross examination, he has deposed that, the injury might have been caused about one or two hours prior to his examination. He has further admitted that, he has not brought the X-rays and he has given the opinion that, the complainant had sustained the fracture of left side of nasal bone only on the basis of the report given by the District Hospital. He has further admitted that, he has not mentioned in Ex.P-3 that due to the fracture of which bone, there was bleeding. He has admitted, that there was a fracture of left side bone. He has further admitted that, if a person falls on the ground facing towards the ground and at that time, he may sustain the injury to his teeth and he may also sustain abrasions and there is likelihood of sustaining the injury which has been sustained by the complainant. He has further admitted that, if a person 13 is fisted, there will be a swelling at the place of fisting. He has further admitted that, he has not mentioned in the wound certificate about the swelling.
15. P.Ws.4 and 8 are the spot mahazar witnesses to Ex.P-4, they have not supported the case of the prosecution and they have been treated as hostile. P.W.5 is also an eyewitness, who has seen the alleged incident and he has also not supported the case of the prosecution and he has been treated as hostile.
16. P.W.6 is the Executive Officer of Taluka Panchayat. He has deposed that, on 1.7.2008 P.W.1 was on duty and he has issued Ex.P-6. During the course of cross-examination, he has admitted that, the clerk brought Ex.P-6 and he has put the signature. He has further deposed that on 1.7.2008 P.W.1 has called him over the phone and informed about the incident on the basis of that, he is saying that he was on duty. He has further admitted that, he has not mentioned on the 14 basis of which he has issued Ex.P-6. Except this, nothing has been elicited from the mouth of this witness.
17. P.W.7 is the police constable, who has been deputed for tracing of the accused. As he did not trace, he gave the report as per Ex.P-7.
18. P.W.9 is also an eyewitness to the alleged incident. He has also not supported the case of the prosecution and he has been treated as hostile. P.W.10 is the investigating officer who investigated the case and filed the charge sheet against the accused.
19. As could be seen from the evidence produced by the prosecution, the main cause for the alleged incident is that, when accused no.1 came and asked the complainant, the Secretary of the Taluka Panchayat to issue the cheque in favour of accused No.2 for having constructed the house under Ashraya Yojana and the 15 complainant told he would issue the cheque only after putting a word to the President of Gram Panchayat and after ascertaining about the construction. Immediately thereafter, the accused persons especially accused no.1 fisted on the nose of the complainant and as a result of the same, he sustained bleeding injury. In order to bring the case under Section 333 of IPC, the prosecution has to prove that, the complainant was a public servant and while discharging his official duty, the alleged incident took place. Insofar as the complainant P.W.1 was working as a Secretary of the Gram Panchayat is not in dispute. The only question which remains is that whether P.W.1 - complainant was on duty on 1.7.2008 at the time of alleged incident. In order to substantiate the said fact, the prosecution has relied upon the evidence of P.W.6 - the Executive Officer of Humnabad Taluk Panchayat. Though in his evidence he has deposed that, P.W.1 was working as Secretary of Beinchincholi Gram Panchayat and has issued Ex.P-6, 16 during the course of cross-examination, he has admitted that, he has issued Ex.P-6 which has been prepared by the Clerk and Ex.P-6 has been prepared by the Typist and he is deposing that on 1.7.2008 P.W.1 called him over the phone to inform about the alleged incident and on the basis of that, he is saying that P.W.1 was on duty. If carefully and cautiously the evidence of P.W.6 is taken into consideration, then, it does not appear to be in accordance with law. If really the complainant was on duty, then, definitely there will be attendance register and the same is going to be signed by the official before attending to his duties and the President is also there in the said Gram Panchayat and he could have also issued the certificate to that effect. Be that as it may, even though P.W.6 may be competent to issue such certificate, he has issued the certificate without verifying any single document to ascertain whether P.W.1 - complainant was on duty or 17 not. In this behalf, the evidence of P.W.6 creates a doubt in the case of the prosecution.
20. It is the case of the prosecution that on 1.7.2008 accused nos.1 and 2 came to the Gram Panchayat and after ascertaining about the issuance of the cheque, accused no.1 fisted on the nose of the complainant and as a result of the same he sustained the injuries including fracture. As could be seen from the evidence of P.W.3 - Doctor, he has deposed that on 1.7.2008 at about 6.30 p.m., he examined P.W.1 Udhavrao and noticed
1) abrasion below the right eye measuring 0.5 X 0.5 cms bleeding was present;
2) abrasion on the right side of the chest measuring 0.5 X 0.5 cms; blow mark over the left upper gum and bleeding was present. and he has issued the wound certificate Ex.P-3. As could be seen from the wound certificate Ex.P-3, it reads as :-
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"Wounds or injury found on the person of a male calling him/herself Udhavrao S/o Daulat rao Age : 53 years an inhabitant of R/o Beinchincholi who was sent with PC No.880 from PS Halikhed (B) and accompanied by ---- for report ------ certain injuries said to have been caused on --------- had to be due to Assault."
21. As could be seen from the above text, the history for the injury has not been mentioned and where and how, the said injuries have been sustained by the complainant is missing. Usually, if a person goes to hospital with the history of assault or any incident, before admitting that, it is going to be specifically mentioned, with what history the injured has sustained the injuries and subsequently it is going to be mentioned what are the injuries sustained by him. In the absence of non-mentioning of the history of injuries in Ex.P-3, it creates a doubt that the complainant P.W.1 sustained the injuries because of fisting of P.W.1.
22. Leave apart this, it is the specific case of the complainant that, immediately after sustaining the 19 injuries, there was bleeding from the nose and his shirt was stained with blood. If really, the shirt has been stained with blood as contended by the complainant, admittedly, the blood stained shirt has not been seized by the investigating officer and it has not been sent for chemical examination and even the witness has stated that, he has brought the shirt to the Court at the time of giving the evidence and he is ready to produce before the Court. The said conduct of the complainant itself shows that, how with vengeance he has knowingly kept the shirt and has brought to the Court at the time of giving the evidence without there being any orders from the Court to bring it. If really, he has sustained the bleeding injuries and the shirt has been stained with blood, definitely it could have been seized by the investigating officer. When Ex.P-3 the wound certificate is also not containing the history of the assault and it only shows or mentions as assault and non seizing of the blood stained clothes again coupled with the non 20 production of the certificate or attendance register from the competent person, it creates doubt in the case of prosecution. As could be seen from the evidence of P.W.1, during cross-examination, it has been suggested that, P.W.1 has fallen down when he was intoxicated and no such incident has taken place and for having fallen and sustained the injuries, in order to take a revenge, a false complaint has been filed. This aspect is also corroborated with the evidence of P.W.3 - Doctor. He has admitted that, the injured in this case might have been sustained the said injuries by falling and there will be a swelling at the place of the fisted area, but, as could be seen from Ex.P-3, no where the swelling has been stated. If there is a fracture as stated by P.W.3 immediately after the fracture there will be definitely swelling. As could be seen from the judgment of the trial Court, while appreciating Ex.P-6 and the argument of the learned counsel for the accused, it has been observed that, non-production of the attendance 21 register, it is impossible to arrive at a conclusion that P.W.1 had not attended to his duty. The said observation appears to be not correct. When the prosecution has made out a case that P.W.1 was on government duty and at that time accused Nos.1 and 2 came there and have assaulted in order to drive the accused for conviction under Section 333 of IPC, the basic thing is that, the attendance register or some record would have been produced to show that, he was on duty. In the absence of such material, no presumption can be drawn that, he was on duty. Leave apart this, when all other circumstances which have been discussed above, with regard to non- mentioning of the history and non recovery of the shirt and independent witnesses who were present in the panchayat according to the complainant have not supported the case of the prosecution, under such circumstances, Ex.P-6 should have been analyzed by the Court below, failing which, the said impugned order 22 has come out. I am conscious of the fact that merely because the witness is an interested witness, his testimony cannot be discarded, but, in the above background, if the evidence of P.Ws.1, 3 and 6 is analyzed, there arises the benefit of doubt about the incident. I am also conscious of the fact that merely because there are deficiencies in the investigation, on that ground, the accused cannot be acquitted, if the rest of the evidence trustworthy and reliable. In the case on hand, if the entire evidence is scrutinized, the said evidence is not trustworthy and does not repose the confidence of this Court to rely on it and reliable and it is not above board so as to convict the accused - appellant.
23. It is well established principle of the law that, if there are two views possible from the set of circumstances, then under such circumstances, the view which is beneficial to the accused has to be given. 23 It is also well established principle of law that, in the case of prosecution, if any doubt arises, then, the benefit of doubt will tilt in favour of the accused and the accused is entitled to be acquitted.
24. Looking from any angle, the impugned order is not sustainable in law. The trial Court without considering the material facts and without proper appreciation of the facts and documents has come to a wrong conclusion and has convicted the accused appellants. The same required to be interfered with at the hands of this Court. In view of the above discussion, the impugned order is set aside and following order has been passed :-
ORDER Appeal is allowed and Appellant No.1 is acquitted of the offence U/Sec.333 R/w 34 of IPC and his bail bonds and surety bonds are cancelled and they have been discharged.24
Since case as against accused no.2 has been abated, no special orders are required against him.
The fine amount deposited if any, by the accused, the same shall be refunded on proper identification and acknowledgment.
Sd/-
JUDGE SGS