Karnataka High Court
The State By Sub Inspector Of vs Sri Shekara Poojary on 5 January, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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CRL.A. No.916 OF 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE ANIL B KATTI
CRL.A No.916 OF 2017 (A)
BETWEEN:
THE STATE BY SUB-INSPECTOR OF POLICE
UPPINANGADY P.S.
PUTTUR, D.K.,
REPRESENTED BY STATE PUBLIC
PROSECUTOR
HIGH COURT BUILDING
BANGALORE-560 001
...APPELLANT
(BY SRI.B.N.JAGADEESHA, ADD. SPP)
AND:
1. SRI SHEKARA POOJARY
SON OF LATE HONNAPPA POOJARY
AGED 65 YEARS
RESIDING AT SHIBARLA HOUSE
BAJATHOOR VILLAGE
PUTTUR TALUK-574 201
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CRL.A. No.916 OF 2017
2. SRI.PUSHPARAJ
SON OF SHEKARA POOJARY
AGED ABOUT 33 YEARS
RESIDENT AT SHIBARLA HOUSE
BAJATHOOR VILLAGE
PUTTUR TALUK-574 201
...RESPONDENTS
(BY SRI.SUYOG HERELE E., ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
(1) & (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER DATED 29.11.2016
PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS
JUDGE, D.K., IN S.C. NO.5004/2016- ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 341, 323,
324, 504, 307, 201 R/W 34 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING FOR FURTHER
ARGUMENTS AND RESERVED ON 05.10.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY ANIL B. KATTI,
J., DELIVERED THE FOLLOWING:
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CRL.A. No.916 OF 2017
JUDGMENT
Appellant/State feeling aggrieved by the judgment of Trial Court on the file of V Addl.District and Sessions Judge, D.K., Mangaluru sitting at Puttur in S.C.No.5004/2016, dated 29.11.2016 preferred this appeal.
2. Parties to the appeal are referred with their ranks as assigned in the Trial Court for the sake of convenience.
3. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that complainant and accused are the residents of Bajathoor village. The panchayath road is in existence connecting the house of CW.1 Jagadeesh and others in the locality from Kanchana since time immemorial. There were trenches on either side of the road abutting to the land of accused in one side and Arun Christian on the other side. On 02.03.2014 accused started leveling his land extending till the land of Arun Christian by closing the road with the help of Hitachi. Complainant CW.1 Jagadeesh went to accused -4- CRL.A. No.916 OF 2017 persons and questioned as to why they started leveling the road by closing the existing road, as there would be no road for ingress and egress to his house. Accused No.1 did not care for such enquiry by complainant PW.1 Jagadeesh. Therefore, he went to Uppinangadi Police Station and filed the complaint. The police called accused persons to the Police Station and directed them not to give room for any dispute, till their arrival to the spot. In spite of that accused persons started their work again at 7.30 p.m. and complainant CW.1 Jagadeesh objected for the same. The accused have wrongfully restraining from moving further, accused No.1 by holding him tightly came to assault with sickle and in the process CW.1 Jagadeesh escaping, the sickle hit to the left forearm and he sustained bleeding injury. Accused No.2 slapped him to the left cheek and also abused in filthy language, further tried to push him beneath the Hitachi with an intention to commit his murder. However, complainant CW.1 escaped from their hands and ran towards his house. The brother-in-law of complainant Purushotham took complainant CW.1 to -5- CRL.A. No.916 OF 2017 Puttur hospital where he was admitted as inpatient. It is further alleged in the complaint that there is dispute between complainant CW.1 Jagadeesh and accused regarding land. On these allegations made in the complaint, the Investigating Officer after completion of investigation filed charge sheet for the offences punishable under Section 341, 323, 324, 504, and 201 r/w Section 34 Indian Penal Code, 1860 (hereinafter for brevity referred to as `the IPC').
3(a). On the basis of charge sheet submitted before Addl.Civil Judge and JMFC, Puttur, D.K. in CC.No.924/2014. The trial was commenced for the offences mentioned in the charge sheet. It is only after recording the evidence of PW.1 Jagadeesh, the learned APP filed application under Section 323 of Cr.P.C., the said application came to be allowed and the offence punishable under Section 307 of IPC was invoked. Hence, the Magistrate Court has committed the case to the Sessions Court, since the offence punishable under Section 304 of IPC is exclusively to be tried before the Sessions Court. -6-
CRL.A. No.916 OF 2017
4. In response to the summons both accused appeared before Trial Court through their counsel. The trial Court on being Prima facie satisfied of charge sheet material framed charge against accused for the offences alleged against them. Accused pleaded not guilty and claimed to be tried. Prosecution to prove the allegation made against the accused relied on the oral testimony of PWs.1 to 10 and the documents at Exs.P.1 to P.4.
5. On closure of the prosecution evidence, the statement of accused under Section 313 of Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as `the Cr.P.C.') came to be recorded. Accused Nos.1 and 2 have denied all the incriminating material evidence appearing against them and claimed that false case is filed. The Trial Court after appreciation of evidence acquitted both the accused from the charges levelled against them.
6. Appellant/State challenging the judgment of acquittal passed by Trial Court contended that the Trial Court has not properly appreciated the evidence of PWs.1 -7- CRL.A. No.916 OF 2017 to 5 who have supported the case of prosecution with regard to the incident that took place on 02.03.2014 and the evidence of PW.6 Dr.Asha Jyothi with the wound certificate Ex.P.3 demonstrate the fact that complainant CW.1 has sustained the injuries as noted in wound certificate Ex.P.3 in the incident. The evidence of PW.7 Balakrishna would go to show that on the direction of his officer visited to Puttur Government hospital and recorded the oral statement of PW.1 Jagadeesh and the same was treated as complaint Ex.P.1 on the basis of it case is registered in Uppinangadi Police Station Crime No.71/2014. The evidence of PW.8 Deepak K and PW.9 K R Shivakumar speaks about the investigation carried out by them after criminal law was set into motion. The Trial Court without appreciating the said material evidence on record has recorded contrary finding in acquitting the accused and the said findings cannot be legally sustained. Therefore, prayed for allowing the appeal and to set aside the judgment of Trial Court, consequently to convict the accused for the offences alleged against them. -8-
CRL.A. No.916 OF 2017 7. In response to the notice accused Nos.1 and 2 have appeared through their counsel. The Trial Court records have been secured.
8. Heard the arguments of both sides.
9. After hearing the arguments of both sides and on perusal of Trial Court records with the impugned judgment under appeal, the following points arise for consideration:
1) Whether the prosecution has proved beyond all reasonable doubt that on 02.03.2014 at 7.30 p.m. in Bajathoor village when complainant Jagadeesh came to the said place where the accused were closing the panchayath road which is in existence to connect the house of complainant CW.1 from Kanchana, the accused persons in furtherance of their common intention accused No.1 by holding sickle in his hand wrongfully restrained CW.1 complainant from moving further by holding him tightly, thereby committed an offence punishable under Section 341 r/w Section 34 of IPC?
2) Whether the prosecution has further proved beyond all reasonable doubt that on the above said date, time and place accused persons after wrongfully restraining CW.1 complainant, voluntarily caused bleeding injury to him left forearm by assaulting with -9- CRL.A. No.916 OF 2017 sickle and thereby committed an offence punishable under Section 324 r/w Section 34 of IPC?
3) Whether the prosecution has further proved beyond all reasonable doubt that on the above said date, time and place accused persons in furtherance of their common intention, accused No.2 slapped CW.1 complainant on his left cheek and voluntarily caused hurt to him thereby committed an offence punishable under Section 323 r/w Section 34 of IPC?
4) Whether the prosecution has further proved beyond all reasonable doubt that on the above said date, time and place accused persons in furtherance of their common intention intentionally insulted CW.1 complainant by abusing him in filthy language with intent to provoke him to commit breach of public peace and thereby committed an offence punishable under Section 504 r/w Section 34 of IPC?
5) Whether the prosecution has further proved beyond all reasonable doubt that on the above said date, time and place accused persons in furtherance of their common intention pushed complainant CW.1 under the Hitachi with such intention or knowledge that their such act will cause his death they would have been guilty of murder and thereby committed an offence punishable under Section 307 r/w 34 of IPC?
6) Whether the prosecution has further proved beyond all reasonable doubt that on the above said date, time and place accused persons in furtherance of
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CRL.A. No.916 OF 2017 their common intention accused No.1 hidden the sickle which he used to assault CW.1 and tried to disappear the evidence of commission of offence thereby committed an offence punishable under Section 201 r/w Section 34 of IPC?
7) Whether the judgment of the Trial Court requires any interference by this Court?
10. On careful perusal of oral and documentary evidence placed on record, the prosecution alleges that panchayath road is in existence connecting the house of PW.1 Jagadeesh and others in the locality from Kanchana since time immemorial. There were trenches on either side of the road abducting to the land in one side and Anun Christian on other side. On 02.03.2014 accused started leveling his land extending till the land of Arun Christian by closing the road with the help of Hitachi. When the complainant PW.1 Jagadeesh questioned the said act of accused in leveling the road extending till the land of Arun Christian by closing the road accused No.1, by means of sickle came to assault him. In the said process PW.1 Jagadeesh escaped from such assault, but sickle hit to the left arm and due to which he sustained bleeding injuries.
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CRL.A. No.916 OF 2017 Accused No.2 slapped on left cheek of complainant PW.1 Jagadeesh and pushed him under Hitachi with an intention to commit his murder.
11. The prosecution to prove the incident that occurred on 02.03.2014, wherein PW.1 Jagadeesh sustained injuries relies on the oral testimony of PW.1 Jagadeesh, PW.2 Purushotham, PW.3 Sadanand, PW.4 Tulasi and PW.5 Chandrakala. PW.5 Chandrakala has shown the place of incident and spot panchanama was prepared in presence of PW.10 Koragappa Salion. The prosecution further to prove that PW.1 Jagadeesh sustained injuries in the said incident relies on the oral testimony of PW.6 Dr.Asha Jyothi who examined him in the Government Hospital Puttur on 02.03.2014 at 11 p.m. and issued wound certificate Ex.P.3. The evidence of PW.2 Purushotham would go to show that he has shifted the injured PW.1 complainant to the Government Hospital. The said evidence is sought to be corroborated by the evidence of PW.7 Balakrishna who visited the Government Hospital Puttur and recorded the oral complaint of injured PW.1
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CRL.A. No.916 OF 2017 Jagadeesh Ex.P.1. The prosecution further relied on the evidence of Investigating Officer Deepak K and PW.9 K R Shivakumar to corroborate the evidence of PWs.1 to 5 with regard to PW.1 Jagadeesh sustaining bleeding injury in the incident of assault that occurred on 02.03.2014.
12. Learned Addl.State Public Prosecutor has argued that injured complainant PW.1 Jagadeesh has spoken about the incident in consonance with the complaint allegations Ex.P.1 regarding the manner in which the incident took place and due to assault of accused No.1 by means of sickle suffered injuries over his left forearm. The said evidence has been further corroborated by the evidence of PWs.2 to 5 and the medical evidence in the form of PW.6 Dr.Asha Jyothi and the wound certificate Ex.P.3 substantiate the oral testimony of PW.1 injured Jagadeesh that he sustained injuries in the incident due to assault of accused by means of sickle. The evidence of PW.7 Balakrishna would go to show that he has recorded the complaint of injured complainant in the hospital Ex.P.1 and on the basis of it case was registered in Uppinangadi
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CRL.A. No.916 OF 2017 Police Station crime No.71/2014. The evidence of Investigating Officer PW.8 Deepak K and PW.9 K R Shivakumar substantiate the oral testimony of PWs.1 to 5. However, the Trial Court without there being any basis doubted the presence of PWs.2 to 5 at the place of incident and recorded improper reasoning in acquitting the accused. The findings recorded by the Trial Court cannot be legally sustained and the same needs to be interfered by this Court.
13. Per contra, learned counsel for the accused has argued that the evidence of PWs.1 to 5 cannot be relied as they are interested witnesses, since they are related to each other. On account of enmity between accused and complainant PW.1 Jagadeesh over land dispute this false case has been filed. The sickle alleged weapon said to have been used by accused No.1 in assaulting PW.1 Jagadeesh causing bleeding injury has not been seized by the Investigating Officer. The Investigating Officer has not enquired the operator and attendant of Hitachi vehicle and none of the houses at the place of incident have been
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CRL.A. No.916 OF 2017 examined to prove the alleged incident wherein PW.1 Jagadeesh sustained bleeding injury. Under these circumstances, the evidence of PWs.1 to 5 in view of admitted dispute between accused and PW.1 complainant Jagadeesh over land dispute cannot be relied. The family members of PW.1 Jagadeesh have been projected as if they are the eye witnesses, though none of them were present at the place of incident according to the complaint allegations at Ex.P.1 and the evidence of PW.1 Jagadeesh. The Trial Court has rightly appreciated the oral and documentary evidence placed on record and justified in acquitting the accused and the said finding recorded by the Trial Court is based on material evidence on record and the same does not warrant any interference by this Court.
14. Before proceeding further in analysing the evidence led in the matter, it is to be borne in mind that it is an appeal against the judgment of acquittal of the accused from the alleged offence punishable under Sections 341, 323, 324, 504, 307 and 201 r/w Section 34
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CRL.A. No.916 OF 2017 of IPC. Therefore, the accused has primarily the double benefit. Firstly, the presumption under law that, unless the guilt is proved, the accused has to be treated as innocent in the alleged crime. Secondly, the accused is already enjoying the benefit of judgment of acquittal passed under the impugned judgment. As such, bearing the same in mind, the evidence placed by the prosecution in the matter is required to be analysed.
(a) Our Hon'ble Apex Court, in its judgment in the case of Chandrappa and others -vs- State of Karnataka, reported in (2007) 4 Supreme Court Cases 415, while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:
" 42(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of
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CRL.A. No.916 OF 2017 law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa's case (supra), the Hon'ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that, it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.
(c) In the case of Jafarudheen and others -vs- State of Kerala, reported in (2022) 8 Supreme Court Cases 440, at Paragraph 25 of its judgment, the Hon'ble Apex Court was pleased to observe as below:
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CRL.A. No.916 OF 2017 " 25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
The above principle laid down by it in its previous case was reaffirmed by the Hon'ble Apex Court, in the case of Ravi Sharma -vs- State (Government of NCT of Delhi) and another reported in (2022) 8 Supreme Court Cases 536.
The Hon'ble Apex Court in another latest judgment in Roopwanti Vs. State of Haryana and others reported in 2023 SCC online 179, wherein it has been observed and held in paragraph No.7 that:
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CRL.A. No.916 OF 2017 "In cases where a reversal of acquittal is sought, the Courts must keep in mind the presumption of innocence in favour of the accused, on grounds of it surviving to rigorous of full trial is strengthened and stands forfeited. The prosecution then while still working under the same burden of proof, is required to discharge a more onerous responsibility to annual and reverse the forfeited presumption of innocence. This fortification of the presumption of innocence has been held in a catena of judgment by this Court".
It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed in this matter.
15. On careful perusal of oral evidence placed on record by the prosecution, it would go to show that the genesis of incident is the accused having tried to close the existence trench on either side of the road adjacent to the land of accused in one side and Arun Christian on another side with the help of Hitachi leading from Kanchana to the house of complainant PW.1 Jagadeesh. The prosecution to prove the place of incident relies on the oral testimony of PW.10 Koragappa Salion shown by PW.5 Chandrakala and
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CRL.A. No.916 OF 2017 accordingly spot panchanama Ex.P.2 was drawn by PW.8 Deepak K, the Investigating Officer of the case. The prosecution to prove the incident relies on the oral testimony of PW.1 Jagadeesh, PW.2 Purushotham, PW.3 Sadanand, PW.4 Tulasi w/o PW.1 Jagadeesh, PW.5 Chandrakala elder sister of PW.1 and PW.7 Balakrishna. The prosecution to prove the complainant having sustained injuries in the incident due to assault of accused relies on the medical evidence of PW.6 Dr.Asha Jyothi who examined injured complainant on 02.03.2014 and issued wound certificate Ex.P.3. Accused have failed produced the sickle used for committing the assault of complainant PW.1 Jagadeesh relies on the oral testimony of PW.9 K R Shivakumar. The said material evidence placed on record by the prosecution will have to be appreciated in the light of case made out by the prosecution.
16. PW.1 Jagadeesh has deposed to the effect that on 02.03.2014 due to holiday he was in the house there is a panchayath road to reach his house since from time immemorial having trenches on either side of the road. On
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CRL.A. No.916 OF 2017 one side there was house of accused is situated and on another side there was house of Arun Christian. On 02.03.2014 accused by Hitachi vehicle was closing the trenches extending to the road and leveling the same. At that time he questioned accused as to why they are closing the road leading to his house. However, accused No.1 carelessly replied. Therefore, he went to the Uppinangadi Police Station and filed the complaint. The accused was secured to the Police Station and they were instructed not to do any work till they visit the spot. However, in spite of that at about 7.30 p.m. accused continued to work in leveling the road and he went to accused to question the same. However, accused No.1 by means of sickle came to assault on him and he brought the left hand across, due to which sustained bleeding injury over left forearm. Accused No.2 slapped on his cheek. Thereafter, they pushed him beneath Hitachi with an intention to commit his murder. PW.1 Jagadeesh escaped from the said place and came to the house, where he was feeling giddiness and due to which his co-brother
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CRL.A. No.916 OF 2017 Purushotham shifted him to Puttur government hospital. On arrival of police to the hospital he has filed the complaint Ex.P.1.
17. PW.2 Purushotham has deposed to the effect that he is working in chicken shop at Uppinangadi. On 02.03.2014 after completing his work, he was coming towards the house of his mother-in-law and found accused No.1 was closing the road by Hitachi vehicle. PW.1 Jagadeesh went to the said place and stopped the accused from closing the road. The accused No.1 by means of sickle came to assault him, but he has brought his left hand across, due to which he suffered bleeding injury over his left forearm. Accused No.2 slapped on PW.1 over his cheek and threatened to kill him. Accused have also pushed PW.1 beneath Hitachi vehicle and attempted to commit his murder. PW.1 Jagadeesh escaped from the said place and came towards the house and he saw the incident in the light of Hitachi vehicle.
18. PW.3 Sadanand has deposed to the effect that on 02.03.2014 he was returning to his house after coolie
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CRL.A. No.916 OF 2017 work at that time he found accused were closing the road leading to the house of PW.1 Jagadeesh. When PW.1 went to the said place to stop the accused, accused No.1 by means of sickle went to assault him, but he brought his left hand across, due to which he suffered bleeding injuries over left hand and also abused in filthy language. Accused No.2 slapped on the left cheek of PW.1 Jagadeesh and PW.1 Jagadeesh escaped from the said place and went towards his house. Thereafter, PW.2 Purushotham has shifted the injured PW.1 Jagadeesh to the hospital and he has seen the incident in the light of Hitachi vehicle.
19. PW.4 Tulasi w/o PW.1 Jagadeesh has deposed to the effect that on 02.03.2014 accused were closing the road leading to their house, her husband PW.1 Jagadeesh went to the said place to stop accused from closing the road, accused No.1 by means of sickle came to assault her husband PW.1 Jagadeesh and he brought the left hand across due to which he suffered bleeding injury over left forearm. Accused No.2 slapped on the left cheek of PW.1 Jagadeesh further accused have pushed PW.1 Jagadeesh
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CRL.A. No.916 OF 2017 beneath Hitachi vehicle with an intention to commit his murder.
20. PW.5 Chandrakala the elder sister of PW.1 Jagadeesh has deposed to the effect that on 02.03.2014 she had came to her parental house and accused were closing the road leading to their house. Her brother PW.1 Jagadeesh went to accused to stop them from closing road, accused No.1 by means of sickle came to assault PW.1 Jagadeesh but he brought his left arm across, due to which he suffered bleeding injuries over left forearm. Accused No.2 slapped on the left cheek of PW.1 Jagadeesh. Accused have pushed PW.1 Jagadeesh with an intention to commit his murder and PW.1 Jagadeesh escaped from the said place and came towards the house and she has seen the incident in the light of the Hitachi vehicle.
21. The medical evidence of PW.6 Dr.Asha Jyothi would go to show that on 02.03.2014 at 11 p.m. she has examined PW.1 Jagadeesh with history of assault and on examining, she found abrasion on the left forearm and the
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CRL.A. No.916 OF 2017 said injuries is opined to be simple in nature. Accordingly she has issued wound certificate Ex.P.3 and she has opined that if a person by holding anybody tightly went to assault with sickle, in that process, if he escaped and then hit from sickle injury mentioned in Ex.P.3 can be caused.
22. If the above referred evidence of PWs.1 to 6 is appreciated in the light of complaint allegations Ex.P.1 then it would go to show that there is enmity between accused and complainant PW.1 Jagadeesh with his family regarding the land dispute. The evidence of PW.6 Dr.Asha Jyothi would go to show that she has examined the injured PW.1 Jagadeesh on 02.03.2014 at 11 p.m. with the history of assault taken place at 7.30 p.m. of the said day. On examination she found abrasion on the left forearm and the said injury is opined to be simple in nature. The mere presence of injury on the left forearm of PW.1 Jagadeesh alone cannot be said as sufficient evidence to hold that PW.1 Jagadeesh has sustained such injury due to assault of accused No.1 by means of sickle. The alleged overt act of accused No.1 in causing injury by means of sickle on
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CRL.A. No.916 OF 2017 PW.1 questioning accused regarding the closure of the road leading to his house has to be proved by the prosecution.
23. According to the case of prosecution accused were alleged to have filled the existing trench on either side of the road abutting to the land of accused on one side and the land of Arun Christian on the other side. Panchayath road was in existence connecting to the house of PW.1 Jagadeesh from Kanchana since time immemorial. It is alleged by the prosecution that accused started leveling his land extending till the land of Arun Christian by closing the road with the help of Hitachi. The prosecution has not produced any documents to show the existence of Panchayath road leading from Kanchana to the house of PW.1 Jagadeesh. The Investigating Officer has not examined any of the responsible officer of panchayath and collected documents to show the existence of road leading from Kanchana to the house of PW.1 Jagadeesh. Therefore, it is evident that other than the oral testimony of PWs.1 to 5 who are interested with
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CRL.A. No.916 OF 2017 each other, there is no evidence on record to show the existence of panchayath road leading from Kanchana to the house of PW.1 Jagadeesh.
24. The prosecution claims that accused were trying to close the panchayath road leading from Kanchana to the house of PW.1 Jagadeesh by means of Hitachi vehicle and the first such attempt was noticed by PW.1 Jagadeesh during the day time. However, no any particulars regarding the Hitachi vehicle used by accused Nos.1 and 2 for closing the road has been either given by complainant PW.1 in his complaint nor the same is furnished during the course of evidence of PWs.1 to 5. It may be true that the seizure of Hitachi vehicle and examination of owner of the vehicle may not be absolutely necessary. However, at the least the operator of the Hitachi vehicle and attender should have been examined by the Investigating Officer PW.8 Deepak K to ascertain the truthfulness of the version of PW.1 Jagadeesh and his family members. It is true that mere fact of PWs.1 to 5 are the family members and interested with each other may not
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CRL.A. No.916 OF 2017 be a ground to reject their evidence in entirety. However, when there is scope for doubting their evidence with regard to the incident and the manner in which it has been taken place, the examination of operator of the Hitachi vehicle and the attender to ascertain the truthfulness of the incident claimed by PW.1 Jagadeesh was necessary.
25. If the evidence of PW.1 Jagadeesh and the complaint allegations Ex.P.1 are perused, then it is evident that even according to the complainant PW.1 Jagadeesh nobody accompanied him when he went to the place of accused to stop them from closing the road. However, PW.2 Purushotham, PW.3 Sadanand, PW.4 Tulasi w/o PW.1 Jagadeesh, PW.5 Chandrakala elder sister of PW.1 Jagadeesh have given their evidence as if they are the eye witnesses to the incident. In fact none of them were present at the time of incident even according to the evidence of complainant PW.1 Jagadeesh and the complaint allegations Ex.P.1. PW.1 Jagadeesh admitted in his cross-examination that he has not stated in the complaint Ex.P.1 that he has seen the accused in the light
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CRL.A. No.916 OF 2017 of JCB and he is deposing to that effect for the first time before the Court. PW.1 Jagadeesh further admitted that place of incident is at a distance of half kilometer from his house. He further admits that the place of incident cannot be seen if anybody stands in front of his house. If the said admission of PW.1 Jagadeesh taken into consideration, the incident in question was being witnessed by PWs.2 to 5 is highly improbable and their presence at the place of incident and having witnessed the incident itself is very much doubtful. They have given stereotype evidence as deposed by PW.1 in his evidence before the Court. Therefore, the possibility of they giving evidence in support of the evidence of PW.1 Jagadeesh in a mechanical way cannot be ruled out.
26. It has been brought on record in the cross- examination of PW.6 Dr.Asha Jyothi that history of assault has not been given in the wound certificate Ex.P.3. However, in her examination-in-chief, she has deposed to the effect that PW.1 Jagadeesh was brought to the hospital with the history of assault incident on 02.03.2014
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CRL.A. No.916 OF 2017 at 7.30 p.m. On what basis such evidence has been given without there being any reference to that effect in wound certificate Ex.P.3 has not been explained by the prosecution. PW.6 has admitted in her cross-examination that in Ex.P.3 wound certificate injury caused to posterior aspect or anterior aspect of left forearm has not been mentioned, so also the age of injury is also not examined, she further admits that if the sharp edge weapon came in contact incised, avulsion or fracture could be caused. She further admits that, if bill-hooked sickle is used, corresponding injury could be caused. It has been further elicited in the cross-examination that if the person while repairing the vehicle touched any portion of the vehicle and came in contact with hard portion of the vehicle injury noted in Ex.P.3 could be caused.
27. Accused Nos.1 and 2 during the course of their recording statement under Section 313 of Cr.P.C. have produced six documents. The said documents would go to show that accused No.1 filed the complaint before Tahsildar, Puttur dated 27.03.2014 alleging that PW.1
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CRL.A. No.916 OF 2017 Jagadeesh and his brother constructed iron gate across Neerakatte of Shibarla road for restricting the vehicle movement before his house. The panchanama to that effect was drawn by village accountant, Bajathoor dated 24.08.2014 and the said iron gate was fixed three years prior to filing the application and the proceedings have taken place before Tahsildar, Puttur. Wherein, revenue inspector of Uppina Angadi was instructed to remove the gate put up by PW.1 Jagadeesh and his brothers in survey No.109/01 which is government mud road leading from Neerakatte to Shibarla situated at Bajathoor village and to take action as per Section 102 of Karnataka Land Revenue Act, 1964. PW.1 Jagadeesh in his evidence admits that there was dispute between him and accused regarding the space, however claimed that the said dispute does not pertains to road. It is also pertinent to note that PW.1 Jagadeesh himself filed an application dated 19.08.2015 seeking time to compromise the matter and one month time was sought for compromising the matter, otherwise we will proceed with the matter. Under such circumstance
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CRL.A. No.916 OF 2017 there is every reason to believe that accused did not agree for the terms, therefore, he has chosen to proceed with the case.
28. The another circumstances is that Arun Christian, Ramakka, Devadas and Rukmaiah are also the persons who would be affected by closure of the road, but none of them have been examined by the Investigating Officer to prove the existence of road and further the incident having taken place as claimed by PW.1 Jagadeesh. The presence of PWs.2 to 5 at the place of incident itself is very much doubtful and their stereotype of evidence as if they have witnessed the incident further adds to the suspicion of they being tutored to give evidence as deposed by PW.1. It is only family members of PW.1 have been chosen to give evidence regarding the alleged incident which appears to be unnatural in the given set of facts and circumstances of the case.
29. The prosecution has alleged that accused have pushed him beneath the Hitachi vehicle with an intention to commit his murder. The prosecution by evidence on
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CRL.A. No.916 OF 2017 record must demonstrate that necessary inference can be drawn from the proved facts of the case that accused has such intention to commit the murder of PW.1 Jagadeesh. In this context of the matter it is useful to refer the judgment of Hon'ble Supreme Court in Sanjay Kumar and Another Vs. State of MP reported in 1994 Supreme Court Cases (cri) 586 wherein it has been observed and held that:
"Section 307 and 324 IPC- Attempt to murder- Necessary ingredients- Held, in order to bring the case within the ambit of Section 307 it must be shown that the accused acted with such intention or knowledge and under such circumstances that if he by that act caused death, he would be guilty of murder-That is, intention or knowledge to commit murder must exist".
In view of the principles enunciated in this decision, if the evidence of PWs.1 to 5 are perused and appreciated in the light of complaint allegations Ex.P.1, no any inference can be drawn regarding the intention of accused in alleged
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CRL.A. No.916 OF 2017 pulling of PW.1 Jagadeesh beneath the Hitachi vehicle with an intention to commit his murder.
30. The prosecution alleges that accused have abused PW.1 Jagadeesh with an intention to cause insult to him. The entire examination-in-chief of PW.1 Jagadeesh is totally silent regarding the alleged abusive words said to have been used by accused with intend to cause alarm to PW.1, or to cause him to do any act which he is legally not bound to do or to omit to do any act which he was legally entitled to do, as a means of avoiding execution of such threat or to cause injury to PW.1 then only it can be said that accused have committed criminal intimidation. In the complaint allegations Ex.P.1 it is only alleged that accused have abused and there is no evidence on record to show that same was with an intention to commit criminal intimidation. In this context of the matter it is useful to refer the judgment of Hon'ble Apex Court in Fiona Shrikhande Vs. State of Maharashtra reported in AIR
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CRL.A. No.916 OF 2017 2014, SC 957, wherein it has been observed and held that:
"Section 504 comprises of the following ingredients, viz., (a) intentional insult, (b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break public peace or to commit any other offence, in such a situation the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should be an act of conduct amounting to intentional insult and the mere fact that accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under section 504."
The evidence of PWs.1 to 5 placed on record by the prosecution is insufficient to prove the legal requirement for the offence punishable under Section 504 of IPC.
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CRL.A. No.916 OF 2017
31. The prosecution also alleges that accused have caused disappearance of commission of evidence of assaulting PW.1 Jagadeesh, it is only the evidence of PW.9 K R Shivakumar who took further investigation and filed the charge sheet has stated that since accused have not produced the sickle, he has incorporated the offence punishable under Section 201 of IPC. The mere non production of the sickle as directed by PW.9 cannot be a ground to hold that accused have caused disappearance of the evidence against them for the commission of offence in assaulting of PW.1 Jagadeesh. The Trial Court has rightly appreciated oral and documentary evidence placed on record and the findings are based on material evidence placed on record by the prosecution. There are no valid reasons to interfere with the findings recoded by the Trial Court. Consequently, we proceed to pass the following:
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CRL.A. No.916 OF 2017 ORDER The Criminal Appeal stands dismissed as devoid of merits.
Registry to transmit a copy of this judgment along with Sessions Judge's Court records to the concerned Sessions Judge's Court without delay.
SD/-
JUDGE SD/-
JUDGE GSR