Karnataka High Court
Prabhu vs State By Hanur Police Station Rep By on 22 August, 2012
:1:
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR. JUSTICE K.N.KESHAVANARAYANA
CRIMINAL APPEAL No.1508/2005 (C)
BETWEEN:
1. Prabhu,
S/o. Rangaswamy,
Aged about 25 years.
2. Rudra @ Rudraswamy @ Kadaiah,
S/o. Chinnaiah,
Aged about 29 years.
Both are residing at Harihananga,
P.G.Palya Village, Kollegal Taluk. ...Appellants
(By Shri Jagadeeshari, Advocate)
AND:
State by Hanur Police Station,
Rept. by Government Advocate,
Prosecutor,
High Court Complex Building,
Bangalore. ...Respondent
(By Shri Rajesh Rai K., Government Pleader)
This Criminal Appeal is filed under Section 374 of
the Code of Criminal Procedure against the judgment
dated 28.07.2005 passed by the Presiding Officer, Fast
Track Court, Kollegal in Sessions Case No.139/2004,
convicting the appellants - accused for the offence
:2:
punishable under Section 332 of the Indian Penal Code
and sentencing them to undergo simple imprisonment
for six months and to pay fine of Rs.500/- each, in
default to undergo simple imprisonment for one month
and etc.
This Criminal Appeal coming for hearing on this
day, the Court delivered the following: -
JUDGMENT
This appeal by the convicted accused Nos.2 and 3 in Sessions Case No.139/2004 before the Presiding Officer, Fast Track Court - Kollegal, is directed against the judgment of conviction and order of sentence dated 28.07.2005 passed in the said case, convicting them for the offence punishable under Section 332 of the Indian Penal Code and sentencing them to undergo imprisonment for six months and also to pay fine of Rs.500/- for the said offence.
2. The two appellants along with 14 others took their trial in the aforesaid case for the charges punishable under Sections 143, 147, 148, 341, 504, 332, 114 and 307 read with Section 149 of the Indian Penal Code (hereinafter for short I.P.C.). All the accused :3: persons pleaded not guilty for the charges levelled against them. After full fledged trial, the learned Sessions Judge acquitted all the accused persons of the charges levelled against them for the offences punishable under Sections 143, 147, 148, 341, 504, 114 and 307 read with Section 149 of I.P.C. Except these two appellants, all other accused persons were also acquitted of the charge levelled for the offence punishable under Section 332 read with Section 149 of I.P.C. However, these two appellants were found guilty of the offence punishable under Section 332 read with Section 149 of I.P.C. and accordingly, they were convicted and sentenced to undergo imprisonment and also to pay fine, as noticed supra. Being aggrieved by the said judgment of conviction and the order of sentence, these two appellants are in appeal before this Court.
3. The case of the prosecution in brief was, at about 11:00 a.m. on 15.06.2002, P.Ws.1 to 11 and 13 as well as all the accused had gathered for a :4: panchayath, near open site behind petty shop of one Basavayya in Lokkanahalli village to discuss regarding a quarrel which had taken place earlier in the village, in the lunch arranged in connection with a marriage function. After the discussion was over and a decision had been taken in the Panchayath, there ensured a quarrel between two groups. P.W.14 - Rajesh Babu, Head Constable of Hanur Police Station, discharging duty in the Out Post Police Station at Lokkanahalli, received information about the quarrel and immediately he along with P.W.20 - Mahadevaiah - Police Constable came near the chawadi. P.W.16 - Siddaraju Naika, Assistant Sub-Inspector, Hanur Police Station, also received telephonic message about the quarrel and immediately he along with his staff came to Lokkanahalli village and reached the place where the quarrel was going on. While they were watching, in the midst of quarrel, there was an assault on P.W.1 - Rachappa and P.W.5 - Kenchaiah. On seeing the assault on P.Ws.1 and 5, P.W.20 intervened and tried to :5: pacify the members of both the groups. At that juncture, accused No.3 - Rudra @ Rudraswamy, annoyed by the intervention of P.W.20, kicked P.W.20, as a result, P.W.20 fell on the ground and immediately accused No.2 assaulted P.W.20 with the chopper on the head. Thereafter, when accused No.3 tried to stab P.W.20 with a knife on the chest, someone pulled him to a side and thereby saved his life. At that juncture, P.Ws.14 to 16 separated the warring groups and shifted the injured P.W.20 as well as P.Ws.1 and 5 to the Hospital for treatment. In respect of this incident, P.W.1 gave a complaint statement at about 04:00 p.m. in the Out Post Police Station, which came to be recorded as per Ex.P-1 by the Head Constable and the same was sent to Hanur Police Station. Based on Ex.P-1, case came to be registered in Crime No.51/2002 and investigation was taken up. During investigation, the statement of the witnesses were recorded, wound certificates were received, accused persons were :6: apprehended and after completion of investigation charge sheet came to be laid.
4. As could be seen from the judgment under appeal, the learned Sessions Judge found that the case of prosecution that the accused persons had formed an unlawful assembly and that they had shared a common object of committing acts of rioting, assault etc., and in furtherance of the said common object, they committed acts of assault on P.Ws.1, 5 and 20, is not satisfactorily established. In this regard, the learned Sessions Judge noticed that P.Ws.1 to 11 and 13 who were stated to be the panchayatdaars present at the place and P.Ws.1 and 5 who were said to have been assaulted, have not supported the case of the prosecution to any extent. In that view of the matter, the learned Sessions Judge acquitted all the accused persons of the charges levelled against them, except finding the appellants - accused Nos.2 and 3 guilty for the offence punishable under Section 332 of I.P.C. For the purpose of recording conviction against the appellants for the offence :7: punishable under Section 332 of I.P.C., the learned Sessions Judge placed strong reliance on the evidence of P.Ws.14 to 16 and 20, coupled with the evidence of P.W.12 - Dr.N.Mallaraju who said to have treated these injured persons. As against the acquittal of the accused for the rest of the charges, State has not filed any appeal. Therefore, in this appeal by the appellants - accused Nos.2 and 3 the only point required to be considered is: -
"Whether the learned Sessions Judge is justified in holding the appellants 2 and 3 guilty of the offence punishable under Section 332 of I.P.C.?"
5. I have heard the learned counsel appearing for the appellants as well as the learned Government Pleader.
6. The learned counsel for the appellants taking me through the evidence of P.Ws.14 to 16 and 20 contended that the evidence of these witnesses are highly inconsistent and discrepant on material :8: particulars which have rendered their testimonies highly unreliable and therefore, he contended that it is highly unsafe to place reliance on the testimony of these interested witnesses to record the conviction. He contended that though the medical evidence indicates about P.W.20 having sustained some injury on 15.06.2002, the evidence on record does not prove beyond reasonable doubt that the appellants were responsible for the said injury and therefore, the learned Sessions Judge is not justified in convicting the appellants for the aforesaid offence. He further contended that the very presence of P.W.20 at the alleged scene of occurrence is highly doubtful, as such, the learned Sessions Judge is not justified in holding that P.W.20 sustained the said injury at the alleged place of incident. He further contended that having regard to the nature of the injury found on the person of P.W.20, the testimonies of P.Ws.14 to 16 that P.W.20 was assaulted by a chopper cannot be believed and therefore, the presence of P.Ws.14 to 16 at the alleged :9: scene of occurrence is also highly doubtful. In this view of the matter, the learned counsel contended that the judgment under appeal is highly perverse and illegal and the findings recorded by the learned Sessions Judge are not based on acceptable evidence, as such, the judgment under appeal is liable to be set aside.
7. On the other hand, the learned Government Pleader sought to justify the judgment under appeal and contended that the learned Sessions Judge on proper appreciation of the oral evidence on record, has recorded finding which are sound and reasonable regard being had to the evidence on record, therefore, the judgment under appeal does not suffer from any perversity or illegality warranting interference by this Court. He further contended that the evidence of P.Ws.14 to 16 and 20 is consistent as to their presence at the scene of occurrence and also as to the assault on P.W.20 and this part of the evidence is further corroborated by the medical evidence and therefore, some minor inconsistency or discrepancy in their : 10 : evidence cannot be a ground to discard their testimony. Therefore, he sought for dismissal of the appeal.
8. I have bestowed my anxious considerations to the submissions made on both sides and perused the records secured from the Trial Court.
9. From the perusal of the records, it is noticed that P.Ws.1 to 11 and 13 who were stated to be the persons gathered at the panchayath as well as P.Ws.1 and 5 who said to have been assaulted during the quarrel which ensured therein, have not supported the case of the prosecution to any extent. Thus, their evidence is of no assistance to the prosecution in establishing, convening of Panchayath in Lokkanahalli village and a quarrel taking place therein.
10. To find out the legality and correctness of the finding recorded by the learned Sessions Judge with regard to the guilt of the appellants for the offence punishable under Section 332 of I.P.C., the only evidence required to be considered is the oral : 11 : testimonies of P.Ws.14 to 16 and 20. I have closely examined the evidence of these witnesses. P.Ws.14 to 16 and 20 are the Police officials. According to them, on receipt of the information about the galata, they went near the scene of occurrence to prevent any untoward incident and when they were near the place of occurrence, they saw acts of assault on P.Ws.1 and 5 and when P.W.20 tried to intervene, he was assaulted and thereby there was obstruction for the discharge of their official duty and for that purpose there was use of criminal force on them. Let me find out as to whether testimonies of P.Ws.14 to 16 and 20 deserve acceptance. No doubt, the evidence of a witness cannot be discarded merely because he is a Police Official. Nevertheless, the evidence of such witnesses requires closer scrutiny. According to P.W.14, on 15.06.2002, he was discharging duty as Head Constable in the Out Post Police Station at Lokkanahalli and at about 10:30 a.m., he heard some sounds of galata and immediately he along with P.W.20 - Mahadevaiah went near the : 12 : chawadi and saw the galata going on there. It is his further say that by that time P.W.16 - Siddaraju Naika, Assistant Sub-Inspector, P.W.15 - H.N.Puttaghudi, Police Head Constable and P.W.20 - Mahadevaiah, Police Constable from Hanur Police Station also came there. According to him, when P.W.20 intervened, accused No.3 - Rudra by kicking felled him on the ground and thereafter, accused No.2 assaulted P.W.20 with the chopper on the left side of the head.
11. According to P.W.15 - H.N.Puttabhudi on 15.06.2002 morning, while he was discharging duty in Hanur Police Station, P.W.16 - Siddaraju Naika, Assistant Sub-Inspector told him that he has received a telephonic message from Lokkanahalli about a quarrel and immediately he along with P.W.20 and P.W.16 went to Lokkanahalli and saw the galata near the chawadi. According to this witness, by the time they reached Lokkanahalli, P.W.14 - Ravish Babu and Mahadevaiah - Police Constable also had reached that place. According to this witness, when P.W.20 intervened, accused No.3 : 13 : kicked and felled him on the ground and accused No.2 assaulted P.W.20 with the chopper on the head. P.W.16
- Siddaraju Naika in his evidence has stated that at about 10:30 a.m. on 15.06.2002, he received a telephonic message from Lokkanahalli about the galata going on and immediately he along with P.H.C. 60 and P.H.C. 72 went to Lokkanahalli and by that time, P.Ws.14 and 20 from Out Post Police Station had reached the spot. According to this witness also when P.W.20 intervened, accused No.3 by kicking him felled him on the ground and thereafter, accused No.2 assaulted P.W.20 with the chopper on the head. However, P.W.20 in his oral evidence has stated that on 15.06.2002 at about 10:30 a.m., while he was in Hanur Police Station, some persons from Lokkanahalli came to Police Station and informed about the galata going on in the village and immediately he along with P.W.16 and one Mahadevaiah - Police Constable went to Lokkanahalli village. According to him, when he intervened to pacify the galata, accused No.3 assaulted : 14 : him with a club on the head, as a result, he sustained injury and he does not know what happened subsequently. This witness was declared hostile and was cross-examined by the learned Public Prosecutor.
12. Thus, from the above, it is clear that there is no consistency in the evidence of P.Ws.14 to 16 and 20. There is serious doubt as to whether P.W.20 at the relevant point of time was in the Out Post Police Station Lokkanahalli or at Hanur Police Station and whether he reached the spot along with P.W.16 or he went there with P.W.14. These factors assume much importance in the light of the hostile evidence of the other material witnesses with regard to the alleged quarrel. According to P.Ws.1 to 11 and 13, no Panchayath had been convened in the village on that day and no quarrel took place. According to them, none of the Police Officials had come to the village on that day, nor any Police Official was assaulted. Except the testimonies of P.Ws.14 to 16 and 20, there is no other acceptable evidence on record to establish the presence of P.Ws.14 : 15 : to 16 and 20 at the alleged scene of occurrence. The prosecution has not produced the available document to show the departure of P.Ws.14 to 16 and 20 from the Police Station to the scene of occurrence on receipt of the information. According to P.W.16, while he was in the Police Station at Hanur, he received telephonic message about the galata in Lokkanahalli and immediately he left the Police Station along with his two staffs. If he had received a telephonic message, the same would have been entered in the Station House Diary. If he had left the Police Station on receipt of such information, the said fact also would have been mentioned in the Station House Diary. However, the Station House Diary or extract there from was not produced before the Court to substantiate their say about coming to Lokkanahalli Village. According to P.Ws.14 to 16, accused No.3 kicked P.W.20 and felled him on the ground and thereafter, accused No.2 assaulted P.W.20, with the chopper on the head. However, according to P.W.20 he was assaulted by : 16 : accused No.3 with a club on the head. He has not stated anything about accused No.2 kicking him and felling him on the ground, nor he has stated anything about accused No.2 assaulting him with a chopper on the head. P.W.20 being the alleged victim, he is the best witness to state as to who assaulted him with what weapon. Thus, the evidence of P.Ws.14 to 16 with regard to the assault on P.W.20 is not consistent with the evidence of P.W.20. P.W.20 has gone to the extent of disowning the alleged statement said to have been made by him during the investigation under Section 161 of the Code of Criminal Procedure which has been marked as Ex.P-20. Thus, there is no consistency in the evidence of P.Ws.14 to 16 and 20 even with regard to the overt act attributed against accused Nos.2 and 3. No doubt, the evidence of P.W.12 and the wound certificate issued by him as per Ex.P-13 would establish that when P.W.20 was brought to P.H.C. Lokkanahalli at about 11:15 a.m. on 15.06.2002, he was found having sustained lacerated wound over the left part of : 17 : the forehead measuring 1 inch X ½ inch X bone depth, with slight bleeding. The appellants have not seriously challenged the evidence of P.W.12 with regard to the presence of injury on the person of P.W.20. Therefore, there is no difficulty in holding that P.W.20 sustained a simple injury in the morning of 15.06.2002 and he was treated for the said injury in P.H.C. Lokkanahalli at about 11:15 a.m. on that day. Merely because the evidence placed on record established the presence of injury on P.W.20, one cannot jump to the conclusion that the appellants are responsible for the said injury. As noticed supra, the evidence of P.Ws.14 to 16 and 20 with regard to the complicity of accused Nos.2 and 3 for the injury found on the persons of P.W.20 is not consistent and cogent. In the light of the glaring inconsistency in their evidence, their presence at the alleged scene of occurrence itself is doubtful. Having regard to the nature of the injury found on the person of P.W.20 as spoken to by P.W.12, the said injury having been caused by a sharp edged weapon like a chopper is : 18 : also highly doubtful. When it is said that person had been assaulted by a chopper, it is proper to infer that the assault was with the sharper side of the chopper unless the victim or the witnesses specifically say that the assault was by the blunter side of the chopper. If sharper side of a heavy cutting weapon like chopper had been used for assault on the head, as spoken to by P.Ws.14 to 16 it would have resulted in incised or cut injury. On the other hand, the injury found on the person of P.W.20 was a lacerated wound which is likely to be caused by a blunt object. The evidence of P.Ws.14 to 16 with regard to the overt act of accused No.3 is not even spoken to by PW.20 - the injured. Therefore, in my opinion the evidence of P.Ws.14 to 16 and 20 with regard to the acts of assault by the appellants on P.W.20 does not inspire the confidence of the Court. In the absence of any other independent evidence, it is highly unsafe to place reliance on the testimony of these Police Officials. Having regard to the glaring inconsistencies and the discrepancies in their evidence, : 19 : which would go to the substratum of their evidence, it has rendered their testimonies highly unreliable. Therefore, it is highly unsafe to place reliance on the testimony of these witnesses to record conviction. In that view of the matter, the learned Sessions Judge is not justified in placing reliance on the testimonies of P.Ws.14 to 16 and 20 to record finding of guilt against the appellants for the offence punishable under Section 332 of I.P.C. The findings recorded by the learned Sessions Judge in this regard, are not sound and reasonable. The learned Sessions Judge has not properly appreciated the various circumstances brought out in the evidence of these witnesses nor has considered the fact that the glaring inconsistencies and discrepancies in their evidence have rendered their evidence highly unreliable. Therefore, the judgment under appeal convicting the appellants for the aforesaid offence is perverse and cannot be sustained. The appellants are entitled for an order of acquittal. : 20 :
13. In the light of the above discussions, the appeal is allowed. The judgment of conviction and the order of sentence dated 28.07.2005 passed by the Presiding Officer, Fast Track Court, Kollegal, in Sessions Case No.139/2004 convicting the appellants for the offence punishable under Section 332 of I.P.C. is hereby set aside.
14. The appellants are acquitted of the charge levelled against them for the offence punishable under Section 332 of I.P.C.
15. The bail bond and surety bond executed by the appellants are ordered to be discharged.
16. The fine amount, if any, deposited by the appellants is ordered to be refunded to them.
Sd/-
JUDGE Rsh