Karnataka High Court
Srikantegowda vs Chandra Murthy on 28 May, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MAY 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR. JUSTICE B.A.PATIL
CRIMINAL APPEAL NO.701/2012
BETWEEN:
SRIKANTEGOWDA
S/O MANJEGOWDA
AGED ABOUT 43 YEARS
CHICKEN MERCHANT
C/O KRISHNEGOWDA
STAMP VENDOR
BEERANA HALLI TANK ROAD
HASSAN - 573 201. ...APPELLANT
(BY SRI B.M.MOHAN KUMAR, ADV;
BY SRI N.S.SAMPANGI RAMAIAH, AMICUS CURIAE)
AND:
1. CHANDRA MURTHY
MAJOR, DRIVER OF POLICE JEEP
TOWN POLICE STATION
HASSAN CITY
HASSAN - 573 201.
2. RANGEGOWDA
KSRTC DRIVER
MAJOR, ARALIKATTE ROAD
HASSAN - 573 201. ...RESPONDENTS
(BY SRI KASHINATHA J.D., ADV. FOR R1 AND R2)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF
ACQUITTAL DATED 08.02.2012 PASSED BY THE C.J.M., HASSAN
IN C.C.NO.2/2001 - ACQUITTING THE RESPONDENTS/ACCUSED
FOR THE OFFENCES P/U/S 323 AND 326 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, BUDIHAL R.B., J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the appellant-complainant being aggrieved by the judgment and order of acquittal dated 08.02.2012 passed by the Chief Judicial Magistrate, Hassan in Criminal Case No.2/2001 wherein respondents-accused Nos.1 and 3 have been acquitted for the offences punishable under Sections 323 and 326 of IPC.
2. Brief facts of the prosecution case as per the private complaint filed before the Magistrate Court is that, complainant is the permanent resident of Hassan city and is a chicken merchant supplying chicken to the sophisticated hotel and is a law-abiding citizen. Accused No.1 is the driver of police jeep of Hassan town police station. Accused No.2 is the sub-Inspector of said police station and accused No.3 is 3 the driver at K.S.R.T.C., Hassan. On 11.5.1996 at about 6.00 p.m. when the complainant was going on his bicycle to the house of one Gangadharashetty, on the way he met one Rangaswamy and he accompanied him for a distance. While coming so, said Rangaswamy went near the house of his brother Rangegowda i.e., accused No.3/respondent No.2 herein and started abusing Rangegowda in relation to some family matter between them. Rangaswamy pelted stones on the house of accused No.3. By seeing the same, accused No.3 came out of the house and slapped on the face of Rangaswamy and also abused the complainant as to why he has accompanied his brother. Accused No.3 dragged the complainant towards his house in aggressive manner and also managed to get the police through telephone. Later, about 3 police constables came in a police jeep bearing No.MYO-1262 to the spot. The driver of the said jeep i.e., accused No.1 came down and started assaulting the complainant with lathi and abused in filthy language. When the complainant protested, accused No.1 caught hold of complainant's hand and kicked on his thigh and legs and 4 thereby, complainant sustained grievous injuries. Two constables were simply watching the illegal acts of the driver of the jeep. Thereafter, complainant was taken to the town police station in the said police jeep. Accused Nos.1 and 2 did not care to take the complainant to the hospital for medical treatment. Complainant was illegally detained whole night and on 12.5.1996 at 12 O' clock he was released without any investigation and enquiry. As it was Sunday, complainant could not take medical treatment in the Government Hospital and on 13.5.1996 he has taken treatment for the injuries caused to him by accused No.1. The doctors have opined that complainant had sustained grievous injuries and is required to take treatment for a longer period as the finger bones were cut. The medical certificate to this effect is also produced for perusal of the Court.
The allegation of the complainant is that though the complainant approached accused No.2, the then Sub- Inspector of Town Police Station, Hassan, he has not registered any case and refused to give endorsement for 5 having received the complaint. Later the complainant lodged complaint before the Deputy Superintendent of Police and also Superintendent of Police, Hassan District. Since no action was taken, ultimately, complainant was forced to file the private complaint. Thereafter, the learned Magistrate has referred the matter to the police for investigation and report invoking Section 156(3) of Cr.P.C. wherein initially police have filed 'B' report and complainant filed protest memo. Subsequently, cognizance of the offences was taken by the Magistrate Court and process was issued to accused persons. After hearing both sides, the learned Magistrate framed the charges against accused Nos.1 and 3 for the offences punishable under Sections 323 and 326 r/w Section 34 of IPC. When the charges were read over and explained to accused Nos.1 and 3, both have denied the charges and claimed to be tried. Accordingly, matter was posted for trial. On the side of the complainant, the complainant himself is examined as P.W.1 and three other witnesses have been examined as P.Ws.2 to 4 and got marked Exs.P1 to P5. Then the statement of the accused was recorded under Section 313 6 of Cr.P.C. On the side of defence no witnesses were examined nor any documents were got marked. After hearing both sides and after considering the material on record, both oral and documentary, learned Magistrate has acquitted both accused Nos.1 and 3 holding that complainant has failed to prove the case beyond reasonable doubt. Being aggrieved by the judgment and order of acquittal, the complainant is before this Court.
3. We have heard the arguments of learned Amicus Curiae for the complainant and also the learned counsel appearing for respondents/accused Nos.1 and 3.
4. Learned Amicus Curiae appearing for appellant- complainant taking us through the entire records i.e., paper book and also the oral evidence of P.Ws.1 to 4, submitted that P.Ws.1 to 3 have consistently deposed in their evidence about the assault made by accused No.1 on the complainant with club and causing injuries. He drew our attention to Ex.P4, the wound certificate and submitted that complainant has sustained four injuries and the doctor who treated the 7 complainant is of the opinion that injury No.3 is grievous in nature and injury Nos.1, 2 and 4 are simple in nature. Learned Amicus Curiae further submitted that as the Doctor who treated the complainant had expired when the trial was going on, P.W.4 another doctor who had the acquaintance with the said doctor gave evidence as P.W.4 in the matter. So far as wound certificate at Ex.P4 is concerned, the witnesses have identified the signature of Dr. Prakash Inamdar and accordingly, wound certificate was marked during the course of trial. Hence, learned Amicus Curiae submitted that evidence of P.Ws.1 to 3 that accused No.1 assaulted the complainant and caused injuries is also supported by the documentary evidence Ex.P4 and there is nothing on record to disbelieve their evidence. In spite of that, the learned Magistrate has wrongly read the entire evidence and wrongly proceeded to hold that complainant has failed to prove his case beyond all reasonable doubt and acquitted accused No.1 and 3.
He has submitted that in view of the oral evidence of P.Ws.1 to 3 supported by the Ex.P4, the wound certificate, 8 the learned Magistrate ought to have convicted both accused Nos.1 and 3 for the charges alleged against them. Hence, it is submitted that the judgment and order of acquittal passed by the Court below is not in accordance with the materials placed on record. There is illegality committed by the learned Magistrate in coming to such conclusion. Accordingly, submitted to allow the appeal and to set aside the judgment and order of acquittal passed in acquitting respondent Nos.1 and 3 for the offences under Sections 323 and 326 r/w Section 34 of IPC.
5. Per-contra, learned counsel appearing for respondents/accused Nos.1 and 3 taking us through the entire materials on record submitted that as per the complaint filed, the alleged incident has taken place when one Rangaswamy accompanied the complainant while the complainant was going to the house of one Gangadharashetty and took him near the house of his brother Rangegowda and pelted stones on the house of said Rangegowda/accused No.3. Learned counsel submitted that Rangaswamy and 9 Gangadharashetty are the main witnesses in the case, but they have not been cited as witnesses nor they have been examined before the Court in support of the contention of the complainant/appellant herein. He also drew our attention to the cross-examination of P.Ws.1 to 3 and submitted that though it is contended by the complainant that accused No.1 assaulted him with the club and caused injuries, but to prove the said aspect, the club is not produced before the Court and even according to the complainant the Doctor who treated the complainant has expired and P.W.4-Dr.Shankar, another Doctor was examined before the Court and regarding the nature of injuries sustained by the complainant he has simply stated that he has not treated the complainant and hence, he cannot say anything in the matter. He has only identified the signature of Dr.Prakash Inamdar, who alleged to have treated the complainant and accordingly, Ex.P4, the wound certificate came to be marked during the course of trial. Though it is stated that he was under treatment in Sanjeevini hospital, no concerned persons from the said hospital have been examined to say about the treatment 10 undergone by him and also no documents are produced before the Court. Learned counsel submitted that it is the defence of the accused persons that the complainant while proceeding on the bicycle, fell down and sustained such injuries. Learned counsel also drew our attention to the relevant paragraphs of the judgment of the learned Magistrate and submitted that the learned Magistrate has considered the entire material on record both oral and documentary and has rightly come to the conclusion that complainant has failed to prove his case beyond all reasonable doubt and accordingly, ordered for acquittal of respondents-accused Nos.1 and 3. Accordingly, sought for dismissal of the appeal.
6. We have perused the grounds urged in the appeal memorandum, judgment and order of acquittal passed by the Court below, oral evidence of P.Ws.1 to 4, documents Exs.P1 to P4 produced on behalf of the complainant. We have also considered the oral submissions of the learned Amicus Curiae appearing for the appellant-complainant and also the learned counsel appearing for the respondents-accused Nos.1 and 3. 11
7. As per the complaint the alleged incident has taken place on 11.5.1996, but in the charges framed by the learned Magistrate the date of incident is mentioned as 11.6.1996. But only on that ground it cannot be said that the entire proceedings are vitiated since on perusal of the evidence of P.Ws.1 to 4 and the judgment of the Court below, it is understood that the alleged date of incident was on 11.5.1996 and not on 11.6.1996. Hence, wrong mentioning of the date of incident as 11.6.1996 has not caused any sort of prejudice to the interest of either the complainant or the accused persons. Hence, we proceed to consider the date of incident as 11.5.1996. However, though it is the case of the complainant that the alleged incident has taken place on 11.5.1996, but the private complaint has been filed before the Magistrate Court after lapse of 25 days. No doubt in this regard it is his contention that the police in spite of giving the complaint have not taken any action in the matter. However, he has produced the endorsement for giving such complaint as per Ex.P1. But, as contended by the learned counsel for respondents 1 and 3 and as observed by the learned 12 Magistrate in his judgment, the said endorsement does not contain the details regarding the date of complainant filing the complaint before the police. The trial Court itself was not satisfied about the delay of 25 days caused in lodging the complaint and it has observed that there is no explanation by the complainant for such delay.
8. So far as merits of the case is concerned, though in the private complaint filed it is contended by the complainant that on the date of the incident i.e., on 11.5.1996 he was proceeding on his bicycle to the house of one Gangadharasheety and on the way, he met Rangaswamy brother of accused No.3 and said Rangaswamy also accompanied the complainant and while so proceeding when they came near the house of accused No.3 Rangegowda, Rangaswamy pelted stones on the house of accused No.3 as accused No.3 was due in a sum of Rs.40,000/- to the said Rangaswamy and had not paid the amount. Since it is stated by the complainant that he was proceeding to the house of Gangadharashetty on that day, as rightly observed by the 13 learned Magistrate in the judgment, said Rangaswamy and Gangadharashetty are the important material witnesses in the case. But their names are not at all figured in the private complaint and also not cited as witnesses on the side of the prosecution. It is also observed by the learned Magistrate that the evidence of P.Ws.2 and 3 shows that they have not witnessed the incident personally and it is the contention of learned counsel for respondents that P.Ws.2 and 3 are the close relatives of the complainant.
9. Further, though it is the allegation of the complainant that accused No.1 assaulted him with club, said club is not produced before the Court or marked as material object. In view of the non-production of material object before the Court, the accused persons are deprived of the opportunity of cross-examining the prosecution witnesses on the aspect of assault made by the club and whether injuries as stated in Ex.P4 could have been sustained due to the assault made by such club.
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10. As per the wound certificate Ex.P4, the complainant has sustained four injuries. But however to prove this aspect, the doctor who said to have treated the complainant has expired and alternatively, P.W.4-Dr.Shankar of S.C.Hospital, Hassan has been examined. However, he is not the doctor who treated the complainant at the relevant point of time and his evidence is not helpful to the complainant and it is only to the effect of identifying the signature of Dr.Prakash Inamdar, who treated the complainant. Apart from that, though it is the contention of the complainant that he has taken treatment in Sanjeevini hospital for the fractures sustained, as noticed from the records, the X-ray produced has been marked subject to objection. Further, as per the original records, the document produced with regard to the history of assault by the Hassan town police with the club and sustaining fracture by the complainant herein is concerned, in the said document the date of incident is mentioned as 12.5.1996 at 6.00 p.m. which is against the contents of the complaint since the date of alleged incident as per the complaint is 11.5.1996. Hence, this document raises 15 doubt in the mind of the Court as to whether the incident has taken place on 11.5.1996 as mentioned in the private complaint or on 12.5.1996 as mentioned in the document pertaining to the very complainant himself. Apart from that, during the course of cross-examination of the prosecution witnesses, the defence taken by the accused is that complainant himself fell down from the bicycle and sustained such injuries and that accused persons never assaulted him. The learned trial Judge while appreciating the case of the complainant has taken all these aspects into consideration and has ultimately come to the conclusion that there is no consistency in the case of the complainant and that complainant has not established his case beyond all reasonable doubt. In the case of prosecution, if any doubt arises, then the benefit of doubt should go to the accused. In that light also, accused persons are entitled to acquittal.
11. The view taken by the learned Magistrate after considering the entire evidence on record is one of the possible views and unless and until it is shown by the 16 complainant that there are glaring illegalities committed by the learned Magistrate in coming to such conclusion, we are of the opinion that appellant has failed to make out a case that the view taken by the learned Magistrate is illegal and not in accordance with the materials placed on record. There are no justifiable and valid grounds for this Court to interfere into the judgment and order of the learned Magistrate. There is no merit in the appeal.
Accordingly, appeal is hereby dismissed.
We appreciate and place on record the valuable assistance rendered by the Sri.N.S.Sampangi Ramaiah, learned Amicus Curiae and hereby direct the High Court registry to pay an amount of Rs.10,000/- to the learned Amicus Curiae as honorarium.
Sd/-
JUDGE Sd/-
JUDGE bkp