Karnataka High Court
State By Sub Inspector Of vs Ravi Prakash on 29 September, 2020
Bench: B.Veerappa, K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON' BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL No.850/2014
BETWEEN:
STATE BY SUB INSPECTOR OF
POLICE, BANNERGHATTA POLICE STATION,
BANNERGHATTA-83.
...APPELLANT
(BY SRI RACHAIAH, HIGH COURT GOVERNMENT
PLEADER)
AND:
1. RAVI PRAKASH
S/O LATE PADMANABAIAH,
AGED ABOUT 38 YEARS,
OCC: R/AT NO.59,
ROYAL HARMITAGE BADAVANE,
GOTTIGERE, B.G.ROAD,
BANGALORE-83.
2. NAGARAJU
S/O GANGADHARA,
AGED ABOUT 28 YEARS,
OCC: R/AT NO.715, 10TH CROSS,
SHAKAMBARI NAGARA,
BANASHANKARI, KANAKAPURA MAIN ROAD,
BANGALORE-78.
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3. H. B. RAMU,
S/O HANUMANTHAPPA,
AGED ABOUT 32 YEARS,
OCC:OPERATOR,
R/AT JANATHA COLONY,
BANNERGHATTA BEHIND POST OFFICE,
JIGANI HOBLI,
ANEKAL TALUK-562106.
...RESPONDENTS
(BY SRI B. ANAND, ADVOCATE FOR R1;
SRI S. SAMPANGIRAMAIAH, AMICUS CURIAE FOR R2 AND
R3 VIDE ORDER DATED 15.09.2020)
****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF THE CODE OF CRIMINAL PROCEDURE,
1973, PRAYING TO GRANT LEAVE TO APPEAL AGAINST
THE JUDGMENT AND ORDER OF ACQUITTAL DATED
13.11.2013 PASSED BY THE III ADDITIONAL DISTRICT AND
SESSIONS JUDGE., BANGALORE RURAL DISTRICT, SIT AT
ANEKAL IN S.C.No.72/2011-ACQUITTING THE RESPONDE-
NT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 448, 427, 354, 307, 384, 504, 506, 511 READ
WITH 34 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, B.VEERAPPA, J, DELIVERED THE FOLLOWING:
JUDGMENT
The State has filed the present Criminal Appeal against the judgment and order of acquittal dated 13.11.2013 made in S.C. No.72/2012 on the file of the III Additional District and Sessions Judge, Bengaluru 3 Rural District, sitting at Anekal, acquitting the respondents/accused Nos.1 to 3 for the offences punishable under Sections 448, 427, 354, 307, 384, 504, 506, 511 r/w 34 of the Indian Penal Code.
2. It is the case of the prosecution that on 05.06.2009 at about 7.30 am, at Royal Hermitage, 16th Cross, Near House No.166, accused Nos.1 to 3 came in a motor cycle bearing registration No.KA-51/E-3430 with a common intention to commit the offence, quarreled with the complainant by demanding two months rent as mamulu as the complainant had come as tenant in that area. The accused Nos.1 to 3 threatened the complainant and her daughters that if they do not give two months rent as mamulu and they will not leave their family. The complainant took her daughters-P.Ws.4 and 9 inside the house and shut the door. At that time, accused Nos.1 to 3 broke the doors and windows with the help of longs and trespassed into 4 the house and dragged the complainant, P.Ws.4, 9 and torn their clothes. The accused No.1 pressed the neck of the complainant and attempted to commit murder. At that time, P.Ws.4 and 9 came to separate them and accused Nos.2 and 3 dragged P.Ws.4 and 9. By that time, P.Ws.7 and 11 came there and the accused persons demanded two months rent as mamulu and told that they will shoot them with gun if they do not give mamulu amount. All the accused persons abused P.Ws.4, 5, 7 and 9 in filthy language so as to provoke the breach of peace. All the accused persons gave threat to the lives of P.Ws.4, 5, 7 and 9. Therefore, complainant lodged the complaint before the P.W.12- K.Vishwanath, PSI, Bannerughatta Police Station.
3. After receipt of the complaint, P.W.12 registered a case in Crime No.178/2009 and sent the FIR to the Court and injured persons to the Government Hospital for treatment. After completion of the investigation, 5 charge sheet came to be filed by the Investigating Officer against accused Nos.1 to 3 showing accused No.3 as absconding. The jurisdictional Magistrate committed the case to the Sessions Court. The learned Sessions Judge framed the Charge for the alleged offences, read over and explained the same to the accused persons, who pleaded not guilty and claimed to be tried.
4. In order to prove its case, the prosecution examined P.Ws.1 to 12 and produced the documents Exs.P.1 to 11 and marked the Material Objects M.Os.1 to 4. The defence have not lead any evidence, but marked Exs.D.1 to 3.
5. After completion of the evidence of prosecution witnesses, the statement of accused persons under Section 313 of the Code of Criminal Procedure was recorded. The accused persons, though denied the incriminating evidence adduced against them by the prosecution witness, did not lead any evidence. 6
6. The learned Sessions Judge, considering the pleadings, framed eight points for consideration. After considering both oral and documentary evidence on record, the learned Sessions Judge recorded a finding that the prosecution failed to prove that on 05.06.2009 at about 7.30 am, the accused Nos.1 to 3 with a common intention to commit an offence, came to the house of the complainant and quarreled with the complainant stating that whoever comes to that area as tenants, should give two months rent as mamulu, since complainant has not given mamulu trespassed into the house of the complainant and committed an offence punishable under Section 448 r/w 34 of the Indian Penal Code; further recorded a finding that the prosecution failed to prove that the accused Nos.1 to 3 with common intention to commit an offence, broke the windows and doors of the complainant's house and caused loss and committed an offence punishable under Section 427 r/w 34 of the Indian Penal Code; further 7 recorded a finding that the accused Nos.1 to 3 dragged clothes of P.W.4, P.W.9 and dragged them and outraged their modesty and committed an offence punishable under Section 354 r/w 34 of the Indian Penal Code; the prosecution failed to prove that the accused Nos.1 to 3 pressed the neck of the complainant-Seethalakshmi with an intention to cause her murder and attempted to cause her murder and committed an offence punishable under Section 307 r/w 34 of the Indian Penal Code; the prosecution failed to prove that accused Nos. 1 to 3 forced P.Ws.7 and 11 to give two months rent as mamulu and committed an offence punishable under Section 384 r/w 34 of the Indian Penal Code; the prosecution failed to prove that accused Nos.1 to 3 told the P.Ws.7 and 11 that they will bring gun and shoot them and thereby committed an offence punishable under Section 511 r/w 34 of the Indian Penal Code. The learned Sessions Judge further recorded a finding that the prosecution failed to prove that accused Nos.1 8 to 3 have abused P.Ws.5, 4 and 9 in filthy language so as to provoke breach of the peace and thereby committed an offence punishable under Section 504 r/w 34 of the Indian Penal Code; the prosecution further failed to prove that accused Nos.1 to 3 gave threat to the life of P.Ws.5 and 7 and thereby committed an offence punishable under Section 506 r/w 34 of the Indian Penal Code. Accordingly, by the impugned judgment and order of acquittal, the learned Sessions Judge acquitted all the accused persons. Hence, the present Criminal Appeal is filed by the State.
7. We have heard the learned counsel for the parties.
8. Sri S.Rachaiah, learned High Court Government Pleader for the appellant-State contended that the impugned judgment and Order of acquittal passed by the learned Sessions Judge is erroneous and contrary to the material on record and the same cannot be sustained. He contended that P.Ws.4, 5 and 9, injured 9 eye witnesses narrated the incident in their evidence and P.Ws.2, 3, 8 and 11 partly supported the case of the prosecution and their evidence is corroborated with the medical evidence of the Doctor-P.W.1. Exs.P.1 to 3- wound certificates clearly indicate that the accused persons are involved in the offences alleged against them. The learned Sessions Judge has not considered the evidence of eye witnesses, medical documents and seizure of material objects 1 to 4 by the investigating officer during investigation. Therefore, he sought to allow the Criminal Appeal.
9. Per contra, Sri. B.Anand, learned counsel for the accused No.1 and Sri N.S.Sampangiramaiah, learned Amicus Curiae appointed by this court to assist the Court on behalf of accused Nos.2 and 3 sought to justify the impugned judgment and order of acquittal and contended that in the complaint lodged by P.W.5, the witness has mentioned the name of accused No.1 only. 10 Later, the names of accused Nos.2 and 3 were inserted at the instance of the police. The complainant-P.W.5, in her evidence, has categorically admitted that there is a Government Hospital at Gottigere. But still, the complainant got wound certificate from Primary Health Centre, Konankunte. It clearly indicates that the case is fabricated at the instance of P.W.12. He further contended that in the complaint, nothing is stated about the weapons, but during the course of evidence, it is stated that M.Os.1 and 2-longs were used which is contrary to the complaint averments and is nothing but improvement. Ex.D.2-complaint was lodged by accused No.3 against the Police Inspector-P.W.12 in the year 2008 before the Lokayuktha and therefore, by vengeance, P.W.12 ensured the insertion of names of accused Nos.2 and 3 in the incident that happened on 05.06.2009 and therefore, they sought to dismiss the Criminal Appeal.
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10. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for our consideration is:
"Whether the Prosecution has made out a case to interfere with the impugned judgment and order of acquittal passed by the learned Sessions Judge, in the facts and circumstances of the present case?"
11. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including original records, carefully.
12. The substance of the complaint was that the complainant recently shifted their house to the Royal Hermitage Layout, Gottigere. P.W.2-Ramachandra Rao, showed the said house to the complainant and not the accused persons. On the basis of the complaint, the accused persons were apprehended on the same day on the ground that the accused persons have threatened, 12 abused and robbed the complainant and made an attempt to kill them.
13. In order to re-appreciate the entire material on record, it is relevant to consider the evidence of prosecution witnesses and the material documents relied upon by the prosecution.
P.W.1-Dr. Sunil D.Inchara, who treated P.Ws.4, 5 and 9 and issued the wound certificates as per Exs.P. 1 to 3 has opined that the injuries 1 and 2 are simple in nature.
P.W.2-Ramachandra Rao, is an eye witness to the incident. Though P.W.5 stated that at the instance of P.W.2 they got the rented house at Gottigere, P.W.2 turned hostile and has not stated that he is the person at whose instance the complainant got the house on rent.
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P.W.3-Harinath Naidu, witness to the spot and seizure mahazar-Ex.P.5 and recovery of M.O.3-glass pieces and M.O.4-Motor bike, partly turned hostile.
P.W.4-Chaitanya-daughter of the complainant- P.W.5, an injured witness, supported the prosecution case.
P.W.5- Seethalakshmi, complainant and injured witness reiterated the averments made in the complaint.
P.W.6-Chandrashekaraiah, Head Constable, Bannerughatta Police Station apprehended accused Nos.1 and 2 and produced them before P.W.12.
P.W.7-K.Ashok, husband of the complainant identified M.Os.1 to 4.
P.W.8-Rajashekar Rao, witness to Ex.P.5-mahazar supported the case of the prosecution.
P.W.9-Kum.Soujanya, daughter of the complainant and injured witness supported the case of the prosecution.
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P.W.10-Suresh Mathew, owner of the house where the complainant and her family members are residing as tenants is an ear say witness and his evidence will not assist the case of the prosecution.
P.W.11-K.K.Kataria, a resident of the locality is supposed to be an eye witness, but partly turned hostile and his evidence will not assist the case of the prosecution.
P.W.12-K.Vishwanath, PSI, Investigated the case and filed his final report.
14. Based on the aforesaid materials on record, the learned Sessions Judge recorded a finding that, "the evidence of P.W.4, P.W.5 and P.W.9 is contradictory to each other and contrary to the story of the prosecution. The evidence of P.W.5 is contradictory to the evidence of P.W.4 and P.W.9 in respect of coming of accused Nos.1 to 3 inside the house and assaulting them. Their evidence is vague in respect of giving threat by accused 15 persons to the complainant. Their evidence do not speak as to who was holding which weapon on the day in question. P.W.4 has denied giving of statement before police as per Ex.D.1. Their evidence is contradictory to each other in respect of throwing of weapons by accused persons either near the gate or inside the house. Their evidence is contradictory in respect of use of chopper or long by the accused persons. P.W.5, in her cross-examination has admitted that when she heard knocking of the gate, she asked the accused persons to come inside. If this admission is taken into consideration, it shows that on the say of the complainant, the accused Nos.1 to 3 went inside the house. The evidence of P.Ws.4, 5 and 9 are contradictory to each other in respect of holding of weapons by accused Nos.1 to 3. P.Ws.4 and 5 have clearly admitted that when accused persons came inside the house, they were not holding any longs or choppers. Their evidence is not clear about how and when the 16 accused persons have secured the said weapons in their hands. They have also admitted that they cannot say who was holding which weapon and who broke the door and windows. Their evidence is contradictory in respect of torning of their clothes in the incident. If the evidence of above witnesses has to be taken into consideration, they have not given any evidence to show abusive words used by accused persons on the day in question. The evidence of P.Ws.4, 5 and 9 also suffers from omissions which have been confronted to the investigating officer. The evidence of prosecution witnesses requires corroboration from independent witnesses". Therefore, the learned Sessions Judge, acquitted the accused persons.
15. A careful perusal of the material documents clearly depicts that, in the complaint lodged by P.W.5 it is only stated that accused No.1 entered the house and threatened her and nothing has been whispered about 17 the weapons held by the other accused persons. P.W.5 denied the suggestion that they got the rented house in Royal Hermitage at the instance of accused No.1. She agreed that the rent was fixed at `13,500/-. She has further stated that they secured the house for rent at the instance of P.W.2. Admittedly, the evidence of P.W.5 does not corroborate with the evidence of P.W.2. P.W.2 has not at all stated that at his instance, the complainant got a house for rent in the Royal Hermitage, Gottigere. The evidence of P.Ws.2 and 5 are inconsistent.
16. It is also not in dispute that in the complaint, the complainant has not whispered anything about the material objects i.e., choppers and longs. The choppers stated in the cross-examination of P.W.5 have not been seized by the police. Though according to the complainant and other injured witnesses, the accused persons threatened them and attempted to kill them by 18 holding deadly weapons, a careful reading of the wound certificate issued by P.W.1-Doctor as per Exs.P.1 to 3 clearly depicts that the injuries found on the body of the injured persons might have been caused on them due to assault with fist, on 05.06.2009 by Raviprakash, Nagaraju and others. The certificate also depicts that injuries on the complainant and others are simple in nature. Though certificate was issued in favour of P.Ws.5, 4 and 9 at the instance of P.W.7, they does not depict that the injuries are caused by deadly weapons M.Os.1 and 2. The doctor has also stated in his evidence that the injuries inflicted by accused persons are clearly mentioned in Exs.P.1 to 3 and the doctor has not whispered anything about the injuries caused by deadly weapons as alleged in the evidence for the first time by P.W.5.
17. It is also not in dispute that P.W.9 stated that glass pieces were recovered as per M.O.3. She has not 19 whispered anything about M.Os. 1 and 2. P.W.8- Rajashekar Rao, witness to Ex.P.5-mahazar is not an eye witness. It is also not in dispute that Ex.D.2 is the complaint filed before the Lokayuktha by accused No.3 against P.W.12-PSI, in the year 2008. The alleged incident in the present case occurred on 05.06.2009. The complaint lodged by P.W.5 as per Ex.P.6 clearly depicts that the names of accused Nos.2 and 3 were inserted in the last line of the complaint and the hand writing differs. It probabalizes the case of the accused that the names of accused Nos.2 and 3 were inserted at the instance of P.W.12-PSI who had vengeance against accused No.3 as he had lodged complaint against him before Lokayuktha in the year 2008. The case made out by the prosecution is based on probabilities and the offences are not proved beyond reasonable doubt.
18. The learned Sessions Judge, considering the entire material on record, both oral and documentary, has 20 come to the conclusion that the offences charged against the accused persons have not been proved by the prosecution, beyond reasonable doubt. There are contradictions and inconsistencies in the evidence of prosecution witnesses and they are all highly interested witnesses. Therefore, the learned Sessions Judge is justified in acquitting the accused persons for the offences charged against them in the Charge.
19. Our view is fortified by the judgment of the Hon'ble Supreme Court in the case of Neelam Kuer vs. State of Bihar reported in (2012)1 Crl. Court Cases 039(PATNA), wherein, at para-4 it is held as under:
"4. On behalf of the defence two witnesses were examined on the point of relationship between the parties D.W.2 on the point of alibi of appellant No.1. Admittedly all the witnesses are interested and, therefore, the testimony was required to be corroborated on material particulars. In the present case, the Doctor has not been examined who alone 21 would have corroborated the prosecution case and therefore, the Court is left only with the oral evidence on the point of assault. Since it is unsafe to rely only on interested witnesses, I am inclined to allow this appeal giving the appellants benefit of doubt. In the result, the appeal is allowed and the judgment dated 23.03.1994 passed by the 1st Additional Sessions Judge, Begusarai in S.Tr.No.60 of 1983/25 of 1990 is set-aside. The appellants are discharged of the liability of their bail bonds."
20. For the reasons stated above, the point raised for consideration in the present Criminal Appeal is answered in the negative holding the Prosecution has not made out a case to interfere with the well crafted judgment and order of acquittal passed by the learned Sessions Judge, acquitting the accused persons for the offences punishable under Sections 448, 427, 354, 307, 384, 504, 506, 511 r/w 34 of the Indian Penal Code, in 22 exercise of powers under Section 378(1) and (3) of the Code of Criminal Procedure.
21. Accordingly, the Criminal Appeal is dismissed as devoid of merit.
22. The valuable assistance rendered by Sri N.S. Sampangiramaiah, learned Amicus Curiae is placed on record. The High Court Legal Services Committee is directed to pay `5,000/- as honorarium to the learned Amicus Curiae, forthwith.
Sd/-
JUDGE Sd/-
JUDGE kcm