Karnataka High Court
State By Vijayapura Police vs Doddasubbanna @ Subbarayappa on 29 May, 2009
Equivalent citations: 2010 (2) AIR KAR R 498
Bench: Manjula Chellur, A.N.Venugopala Gowda
IN THE HIGH COURT OF KARNATAKA AT BANGALORE§,.;.,;.,
5'
DATED THIS THE 29"' DAY OF MAY, 2009
PRESENT
THE HO|\£'BLE MRS. JUSTICE MANJULA C"H._:EL!.;_U.§i' C' L
AND
THE HONBLE MR. JUSTICE A.N.V'\IENIjGoPA_'LA' 'Go\}v;5A."'
CRIMINAL APEEvA:fL'INo.9/'2(3'_o2. *
BETWEEN:
State by Vijayapura P0EiCe1.: _
V = '_ , APPELLANT
(BY SR1. P.M.~N3~gy_éI--z, A__dd§.SPP)«.
AND 2
1. Ddzddas-ubbar.«~naé~. " _ __
@ S.IJbbaraya'pp«a, ,
S/0 Jejeappa '55"yearS*,--.., '
Vokkaiiég-a,"Ag;*j--.CuI-ture'.
Do_dd,as4Lib.banna @
_ 'SIIbh_ar.a'y..ap--pa 46 years,
.._\/oi{'ka~!'.i_ga.fu', Household.
3. ""'£iayv:aTa'mka S/0
D0dd:.asu?3banna @
A .-_,Sub'barayappa, 22 years,
' Vfokkaliga, Agriculturist.
Nagaraj @ Nags-sh
S/0 Doddasubbanna @
=«,;._,4.;34_ ' M if
%W$wk«
10.
Subbarayappa, 20 years,
Vokkaiigaru, Agricuiture.
Suresh, S/0 Doddasubbanna @
Subbarayappa, 18 years,
Vokkafigaru, Agriculture.
Chikkasubbarma,
Deieted vide court order
Dated 4.9.2002.
Devraj, S/0 Chikkasubbanna
20 years, Vokkaitgaru, ' '
Agriculture.
8. Narayanaswamy'
S/0 Subbarma, 28 y'ear.s,"--., ' v. 24 V
Vokkaligaru, Agricu|tue._ "
Thammeg_-
s/cosy:-ariivar
V0'-!§ka._Eigaru',, -Ag r§cu'i-t_u'i=e.-
B.Ra«ma'r1jina'ppa.VA' _, J
S/0 8yrappa,_2--.3 y'.ea'rS,
3 ,'-jg'/o"k'.<.aIig aru.,.__VAg ricuitu re.
, 1Basa,ya._raju
" , 'S,/C'-VT.' B"y..ra'p.pa, 26 years,
"...,Voi<ka!'.i.ga.r'u, Agricutture.
12]
3.
"B.Ev-..'.Narayanaswamy
S/'Q Byrappa, 32 years,
AA .-__Vok"i'<aEigaru, Agriculture.
'Dyavappa, S/0 Subbanna
22 years, Vokkafigaru,
Agricuiturist.
14. Narayanamma
W/o Subbanna, 40 years,
\/okkaligaru, Household,
Ali are residents of Yambrahalii
Viiiage, Kasaba Hobli,
Devanahalii Taluk. ..RESPONDEi\_l_TS
(By Sri Appi Reddy for R1 to Fifth respondent _
R14; R6 is deieted) THIS CRL.A IS FILED ti/s,.'3'78{1)_ at (;3'jAi':C,P.,P.~.c~ 8'? THE SPP PR/-WING To GRANT LEAVETC) FILE. 'ANA-P__PE,AL AGAINST THE }UDGMENT DATED«._,2:i_,9.2oo;, PAss'Ei.D'-.Bv_,V THE SESSIONS JUDGE, BAN-{_3ALOR_E RUF<'Aig;vD,lVSTRECT,._> BANGALORE, EN s.c.No.1'9i.6ie--3,998 '---ACQQITFING THE RESPONDENTS/ACCUSED Foe THE OFFENCES PUNISHABLE uNoER,s~E_CT1o"i\i's'i 2143,2447, 1"48,'"323, 324, 326, 307, 506 i'/w s.14.9"1_Pc_.
This appeai c,omi.ng~ Vyheafiring this day, \/ENUGOPALA GQi_NDA.,, 1,, deiéxteted,t_he'fo|iowing:
'.eRjoD§MENT V__This"-ap"peaI, iAs--._idi~:iected against the judgment and orv=d,e*r of a.cquittai"---p«a'ssed by the learned sessions judge, *F3:an'gai'ore,,"'R,p'r'a| District, Bangaiore, dated 21.09.2001 in ss::§1is'sio;is'{:';;si;e No.196/1998. Brief facts, according to prosecution, which are '.n'ec'essary to dispose off this appeai could be stated as V' ""foilows; K 1 were referred to Victoria Hospitai for further treatment. E><s.P-5 to P~11 are the wound certificates issued _._b__y the Qoctors. After recording statements of the witnessie's_'and compieting the investigation, charge sheet ':.a'i'i accused persons was flied before the use'J'uI.risdicti_onai'V' Magistrate at Devanahaiii, for "'t.hei.A_'Soffenc--es-.pun'ish.at5ie under Sections 143, 147, 1zis,f:xo7, 323, i324, 3'2'6'"ai-id 5067 read with Section 149_.of Iii?-.'C:..ii-Thec_case'wasfiornmitted under Section 209 .Court. The Case against accused was framed against offences punishable undeijSec-tion'sV1..€i:8',.1506 read with Section 149 of I.P.C. not guilty for the charge and case was postegdvfforntriai. During the course of triai, 16 'w_iStr.e_ssAco.uAt~..of 18 witness cited in the charge sheet were prosecution. 12 documents and 11 rn"ater*i.Vai ohjects were marked in support of the prosecution S * Cia.se.S"' Except marking Ex.D~1 during crosswexarnination of "'.VP"W?'14, accused have not adduced any evidence in their "defence even after they were questioned under Section R /,1 313 Cr.P.C. Keeping in view the rival contentions and after examining record of the case, learned Sessions Judge has answered the points raised by him against' the prosecution by holding that, prosecution has faiyiyedtVto'4§b.r'i'ng home the guilt of accused persons beyoridil t.e:a.sVo'n%a»b'i4eM"
doubt for the offences charged:"agains_t"--.gthe:'ti:"a_ndv"g=ive'n 9 them benefit of doubt in the iightuofllthe cou'i_i_te*.-ogaasei'i'.i.ied, against them.
3. The Sta.t§~,....é_ agg't'i'e\gP§¢ the trial court judgment, has preferred thislapip'ea.l«.._f"
Al3e--'fot_eV'agpriolceeding further, it would be appropriate»to"i-notiwceJlmain reasons for acquittal of acgc_=;is'e£l. by theylearnvefld Sessions Judge. i ;(a)_iPr.ovsectiyt'i'on witness 1 to 8 and 10 are related to each (Ab-)__Ind.e~p_et~ident eyewitness Pl/V-9, has turned hostile to p~ros:ecution and no other independent eyewitness was it ' examined.
'.(c')°l\3o corroboration for evidence of the reiatixe witnesses. /"
(d) Deiay of more than a day, compiaint reaching the Court which is not expiained, is fatai on account of the counter case by accused party against the complainant and his supporters (prosecution party).
(e) No consistency in the evidence of witnesses"eXa~n§i~n:ed«A and presence of the PWs 1 & 10 at the piace.off_i.inciden--t_' V' is doubtfui, which is apparen~t"'fr'om t7_he_.dep'osi'tioin Vt,-.f& PW»10. ' ' " " " "
(f) Inconsistency in the sta,ten3ents"io_t"PWs the assailants, weapons h'é'id:'and thé.jnj'u.ri=es".7_
(g) Biood stained clothes not..se:2?e'd'b~,r_the é'p'oiice»;'E
(h) Ex.P--3 -- Spot mahaaiar,does':no't--Vfs§h,ov\I_the presence of biood stainsat the ,SRf5_t'~0f"i.nci,dei«],t* . 1 ---- 'i-'n»v_ie.\7v the counter case (E) Prosecution"ca,se d_ou.t3tfui,' fiied agai_n's'tV'Vp rosecution party. 5}g_ "we P.M.Nawaz, learned Addl.
State ..P,ubiiuc" Prosecuit-oriifor the appeliant. Respondents, . thoui_;hi."i'rha'i\<e entered appearance through their iearned }$iC_\;uocate__,. "rern,aii~ned absent. We have perused the record. P.M.Nawaz, by taking us through the e\{idezm:.e; of PWS 1 to 16 and Exs.P--1 to Ex.P--12, A' 'i.Vi/eheimently contended that, E /"
M
(i)
(ii)
(iii) " i) v.._The discrepancies The impugned judgment and order of acquittal recorded by the trial court is contrary to the facts, circumstances, probabiiities of the case and the law.
Learned trial judge has seriously'~«é_rre_d:_.Vi_r'.«_ appreciating both oral and,"'d.ocu_rneritar--{/_ testimony on record Reasons assigned :*.by1'_'the trial" c'o=4'rtV'it'w'h1:ile discarding the -t_estinéo,_n'y of evv'; .268 the injured', unreason.:ib|ev,: mMere|y because.,they,.a're"related to e'a'ch-'other, the evidence,'gwhiuch'}is"?::o..n'si.stent, could not have be.er--1.d'i~sc'a.rd»,ed"."". " ' " is no'~'co'rrrect"'evaluation of evidence "'th'e_'/View "1"ta'i<'en by the trial court is V 'unfreasoVr.ea_ble' and illegal.
~ 1"he""a'ppe'i'--!.ate court has ali the powers to re- rhiapprec-iate and re--evaluate the entire eVi'd'ei*1'ce on record.
pointed out in the riV.l'::"~'i'mpugned jucigrrrent, are insignificant in nature, therefore liable to be ignored. This is a fit Case to reverse the findings and record an order of conviction.
/_
7. We have given anxious consideration to the submissions. The point that would arise fo_r___ our consideration is "whether in the facts and circumstVa'n_ce:s'..of the case, the judgment of acquittal Court warrants interference?"
8. PW--~1 has admitted thatpthere .':a.cri:m'irial"'e. case against his son and others' in', the"C._oiurt JMFC at:
Devanahalli, which _sci_V_bseqiu'e.rit.l'Y'~,withdrawn to the Sessions Courtand is...p.endihg1;,'.~~;fi..'C':--.N*o".2/2000. PW--2 also of i.sva'id"*case against him in connec'ti'or'*ie.wii,th thieacycused persons with salike by hir'n,an_dVother's,: who has prepared Ex. P3 has alsoadmitted thatAAo_nWOix3.01.1998 itself, a case in Crime was"i*e--g'i'stered in the police station against 'sorne'f,_olf..'the'. witnesses of the complainants side. 'l;i,n'dispii,te:ciV_l~,?;, the accused party also lodged a complaint against: the prosecution party, over the same incident, ,wh'i';:h happened on 05.01.1998. It is not in dispute that, "Eon the strength of the complaint lodged by accused party, t / .
investigation was carried out and charge sheet was filed in C.C.No.2/2000 against the prosecution party,t_Vrh:erein aileged to be the reai aggressors. T
9. The procedure to be""'fo'E'ioyv'ed courts, in the event of cross--cases.,__ has been Wei! by the Hon'bie Supreme Cour't,fii'n, the case'..of'_:l\iat4h'i"Lai Vs."' State of U.P., 1999 SVCCV_A(Criv)"63t3'jgwiiffiggh is'to"the4foiiowing effect. p p p p p "2. We,tléinl'{«tha':t the-.t'ai"r, profcedujre to adopt in the _ma..tte5r"l.ike the _ pre.sent where there are crosis--ca-ses',""is ,to~.ijcl!réc.t":Ath'agt the same learned judgev~.niust,Vtry"both th__e crcfiss--cases one after the" other. ":fni'tei=.gVtl7e recording of evidence in '-one -caVs*e;~..is'«completed, he must hear the airgumentsflztit hen'--must reserve the judgment. Thereafter he.A'rnu"s-t proceed to hear the cross- __case"~~an'd.Va'ftei:_ recording all the evidence he Vrnust hear the arguments, but reserve the judgiment in'*tt:at case, The same learned judge _must"thereafter dispose of the matters by two separate'-'judgments. In deciding each of the 'caf$*es,'~:;"i'ie can rely only on the evidence recorded in that particular case. The evidence recorded in the cross-case cannot be looked "into. Nor can the judge be influenced by whatever is argued in the cross~case. Each case must be decided on the basis of the evidence, which has been placed on record, in that particular case without being influenced in any manner by the evidence or arguments \\t /_.
urged in the cross--case. But both the judgments must be pronounced by the same learned judge one after the other. "
10. Indisputably, the Investigating'-~ f submitted charge sheet in c.c.2/2ooo on_th,e_:'*ba'siS' the compiaint iodged by the accusedIpart_y4[h.erein_i'n.:respoeet_o:f the same incident againstgthe pros_ecutior2.7ea.rty: h'é;r.e'in..'Q The Sessions Court having wi't'h.d;rawn the case, which was pending on the 'f;i.i'e"M«--of 'VAMa._gi.s't'i<ate Court, it wouid have been justyfair and_,:h'prooer:to"'hVa'v:ej_-decided both the cases together hitsezif, in"view..of*xt'h--e»»iaw declared by the }-fon'I3:i"e"+'§5'up.reme:%;'ourt.ih the'"_'Ca'se of Nathi Lai (supra). En Sudhir Vs. State of Madhya Praeie"sh., (ZVOGQV Supreme Court Cases 688, a case and 'a._,Viucou'r:t'erfACase, both were committed to the Court of .S*e.5sio'is1.;""_a_s tioeth cases involved offences triabie exclusiveiy Se.ssios€s Court. But after hearing the preliminary ~a.rg4un'ients, the Sessions Judge feit that, in one case no "'.o'f'r*ence triabie exciusiveEy by the court of Session is '' "involved, whereas in the other case a charge for offences E/i
12. Thus it is clear that, cross-cases should be tried together by the same court, irrespective of theinlatgure of offence involved, primarily, to avoid the the judgments, over the same incident, be.ca_:u»sVe:i.i.f' c_ross"--.. cases are allowed to be tried ti/,\'Ioxj::o'ii>rts.' there is likelihood of conflict,i.i'ig,__.§udégirierits. ' l A if
13. In the instant casle',:.l',,d6'§Dite"tlifezinvyestigation leading to filing of c.,_c_l,'*i.iq.2/.:iooAo and also the case beingA._withdvravv"n:--.,to._lthe".'C.oVu':it,---"of Session, the court belowflwiithgisult aVd'--opit_in;g t:he.Vp'lroCedure and guidelines declaijed"'i'r'i' tj'i.,,Vl:\iath'i"_"La'i'lvlsupra), has Dassed the impugned to the prosecution, the inveVst_igatio"n oftghve incident on the basis of complaint and cre,ss-c,._o.:mgaliant,"leiadto the filing of charge sheets in both ldisoth the said complaints, cannot be said to be right, on,e-tgfillthem, must be false. In such a situation, legal "obligation is cast upon the Investigating Officer, to mialllce an endeavor to find out the truth and culi out the truth from falsehood. Significantly, investigation Officer X g//"
/£-
has not deposed in the matter. The investigation Officer has failed to discharge the obligation. Even otheryvise'...the court should have adopted the procedure indicatefd._,i__n5t_h'e. case of Nathi La! (supra), to find out which....g:i_a~rty:~l--l.iiva_s real aggressor.
14. PW-1 is the cor~n.pi*ainarit,'eye.o_w.i:tri'evé's'~~t6 the' incident in question. 2Ato'$."%are'"t'he infij'ured..~persons in the incident. PWs as the eye witnesses. case of the DF0S€CUtl0"'l-- theljiiiianchas for Ex.P--3. llférornlvthe police station and delivered: the on 06.01.1998 at about 10:3Q a.n?i';~. VP'J\IV--w:.3ll'h»av--i"ng accompanied the investigation O'ffiC€{;i.:ha.S written----Ex.P--3. PWS 15 & 16 were the Medical "i'Ji_fice:rs,.:Vvv..h'o.:ti'eated the injured persons and issued wound ce_r'tificate's1.:_ at Exs.P--5 to Ex.P--11. The case of the prosecution is required to be examined in the light of the Vstadtements made by said witnesses and Ex.P--1 to Ex.P--11. K /7 1S. PW--1 is the father of PW--2. PW--10 is the brother of PW--7. indisputably, PWS 1 to 8 and are related to each other and so also the accused --fp'e..r"son.s, The only independent eye witness examined ' has turned hostite to the prosecu.tion...4&Si'nce:,'' 9' and 10 are related to each other, ithyeiryeyidence-.i's to be scrutinized carefulty, ilra-.,t'ii~e absence _of'-.co'rro'i:a'or'ative"' evidence by any other'indeypenldent'-yyitnelssv-or.--evidence. PW--1 has stated that,"4'ii:e.'iod.g?§d.v on the date of incident' that he was entrusted on 06.01.1998 and he to the court at about 10:30 a.m. Perusal that it was received by the potyiicgifielyattt about a.m., on 05.01.1998 and is said to haye been:4vl'dispatched at 11:00 a.rn., on 05.01.1998 as me.nytio'r'ie'_of.__iri:Ei'>E.P--4. The delay of one day in reaching the complaint"'{Ex.P--1) and FIR (Ex.P--4) has not been exptained. A person from \/ijayapura can reach '"DVe'vanahalEi in about 30-40 minutes time. The long delay "'"assumes importance in view of the defence of the accused that, a case of assauit on some of them was fiied and was registered against the prosecution witnesses, which-.___after investigation has resuited in filing of charge sh'ee:t:'%n"jC';C. No.2/2000. In the circumstances, the Investigatingigi(fifficer ought to have ascertained whichjp"ar'ty. was agwgr-e'ssxo-r at the first instance and whether__ the"aggr.es~s.or. subsequent stage has acted in seif.._j'{,pres'ervation."' Prosecution witnessesihave,no't=st'ated._ an3a;th'i'ngWabout the assault on the accused
16. rias. stated about 30 persons had andplace of incident. Who were thoseV'3O"persons...Vbasvnobbeen stated. The incident having tai<e_n piace n'ear';_a t-ernpie at about 7:00 am., number of other:,_A-.i;§er.s'ons"Vwouid be present. PW--9 was the oniy "'in_dep:enadent,_'eyewitness examined, who has not supported prosécutiion, Though the presence of others could be inferred. from the statement of PW--10, no other V.ind'ependent eye witnesses has been examined, which __5creates reasonabie doubt in the case of the prosecution, i /7, In view of the statement of PW--1O to the effect that, about 30 persons assembled near the place of éncident,_..i_n our opinion, non--citing of one or few of them as witnes'séS«,d:and their non--examination, creates reasonable the prosecution case. That apart,'--i,there_,,"'areV'vrif:,aj'o.r contradictions even in the statements-A.of'lPV\l?41Ta-nvd
17. PW~1 has deposVe'd._:'that, 2 8 had bleeding injuries, tha-t._"'j%bl0c--iAd at the place of incident and as__we|l aAs...o:n»M;f.V)Asi.,d1"to"1*:i;.---i>Ws 2, 4, 5 & 7 have stated siistain'in_c;:;"'.o'f"bleeding injuries and that lthelir'iciioithelsfdbei'r'i~g:"'b|oo'd"'StVained. Even PW»~1Ci has deposed thaVt,.ci'o'tbfesi_:of-.,:l§}Ns 2 to 8 were blood stained. But,_there"i.s 'no_s-ei::,2lre~--"of blood stained clothes. Ex.P--3 -- r.nai1aAzar,V"'doe-s"not indicate the presence of blood *sta'in.s"'a,t'it.h'e.,,:p'lace of incident. has not stated the weapon with which PW»~2 assaulted by accused No.1. Similarly PWS 6 & 7 not stated with which weapon, PW--2 was assaulted vflby A»~1. 9W5 3 & 4 have not even narn cl A-1 as the /.
_,.
assailant of PW-2. The evidence of prosecution witnesses, to which a detailed reference has been made by the learned sessions judge in the impugned judgme'nt'~s'ho"w,s that, there is no consistency and hence uVnre"iiiab,!é;i There is great deal of discussiorf"n'iade in th'e'ii'inVpu--g'nec!' judgment with regard to the inconsistency in the statemen.,t's*~..of prosecutionVV"~-wvitnewsses,f"
which in our view, is dfonot int'eindV§to repeat the same, since therejis' reference and consideration, by *_-the reference has been by the trial court even the the Medical Officers and also the police it 'V19. Thei--_.f:aVct tnat no independent witness, though »a'v-a_VilabVle._,p--rwa,s_ examined, is a serious infirmity in the H ~pAr'o-siecution 'case having regard to the facts of the case. only zmidgependent witness PW~9, as already noticed has not supportfed the prosecution case. The corroboration of futelstlilrnony of PWS 1 to 8 and 10, by an independent R /7 F'?
witness, could have strengthened the prosecution case, in view of the fact that, incident took place near a temple at 7:00 am., where 30 persons had assembled. examination of independent witness may not,"give:"rE,'seto ' an adverse inference against .:the_gprosecutlionll'case,V especially when the prosecution witnesses. However, wheri-_,_Vg4'"th%e e'videnVce.: 'of"""iall'eged"' eyewitnesses, PWs 1,8510 ra-i-ses"g':--ser.i,ous'deu.bt.and other prosecution witnessesllélamrhe other, non- corroboration, is delay in lodging of This is further the fact that, no bloodstains were fopnd incident and the bloodstained clothgels were notgwsleized by the investigating Officer. There are se"riAoi.is7--.doubts in the evidence of the prosecution ~Wi'tn,es'se's'v,.antl"hence we come to the conclusion that, there is 5 rea'soiia'ble possibility of the accused not being the real agggressors and in the absence of cogent, consistent and "'itVrijstworthy evidence appearing on record against the 0 ' "accused, it is also difficult to sift the grain from the chaff, L /5' .
especially, when there is counter--case filed by the accused party against the prosecution party, to hold the accused as guilty of commission of the offence.
20. It is weli settled by the Hon'ble Court, by catena of decisions to th<e"'eff.ect-itha:t,"ito ove_rjru'ie it or otherwise disturb an order oi'actiuittalll"passed trial court, there should be.._f"s~i.ibsta'ratiai andV"'~c'oi'inp'eliing"'l reasons" and that the..appeii~ate",_'-court mu'st...ai.yvays give proper weight and cons'ide'ratio}'»i to :thIei.f:iiidings of the triai court. It has al;so.._bee'n t,h'at,--._if twzoireasonable views can be"'rea'c.h']e,d, that'-reac_h'esV4to acquittal, the other to convict'i.ori,._ the Va«.p':pel'la_te---pcgturt must rule in favor of the accused. T..ho'ugVh'V--_thel appellate Court's power is wide and e>dZ..é'ns,i-ve,..,_it must"-b-e"used with great care and caution. . 2v:i°;'_~..,__C5,i'ai""consideration of the entire evidence on record,..':th'e"""view taken by the triai court is a possibie and h pl;a,usib'i'e view. The triai court has discussed the material '.as'p'ects of the case and has correctly appreciated the ' "evidence, to record its opinion and pass E3 order of /, acquittal, in view of the prosecution faiiing to prove its case beyond reasonable doubt. On considerationVV_iof'i~t_he record, we do not find any substantial or compeiléiiing5_':fea'srq_n' _ to interfere with the impugned y_}ALidgmen't"'a:§§dy'order acquittal.
For the foregoing discu'ssiVo'--n and 'i<e_ason.=s,atnewiiaippealV' is devoid of merit andconseqijent4EyVV"'st_andsé'di'si'nissed. We order accordingly. H V V V Sd/-' ;.
IUDGE