Karnataka High Court
B C Thammareddy vs State By Chintamani Rural Police Rep By ... on 18 July, 2012
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IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
DATED THIS THE 18TH DAY OF JULY 2012
BEFORE
THE HON'BLE MR. JUSTICE K.N.KESHAVANARAYANA
CRL.A. NO.1809/2005 (C)
Between:
1. B.C.Thammareddy,
S/o.Channappa,
Age 52 years,
2. Appi Reddy,
S/o.Nareppa,
Age 28years,
3. B.Rajanna,
S/o.Bachappa,
Age 29 years,
4. Babu,
S/o.Narayanaswamy,
Age 22 years,
5. Munireddy,
S/o.Ramappa,
Age 27 years,
All are r/at Doddaganjur Village,
Chintamani Taluk
... Appellants
(By Sri.S.Shankarappa, Advocate for
M/s. S.Shankarappa and Associates, Advocates)
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And:
State by Chintamani Rural Police,
Rep. by S.P.P.,
High Court, Bangalore.
... Respondent
(By Sri.G.M.Srinivasa Reddy, HCGP)
This Criminal Appeal is filed under Section 374(2)
Cr.P.C. by the advocate for the appellants against the
judgment dated 30.08.2005 passed by the Principal Sessions
Judge, Kolar in S.C.No.134/2003 convicting the appellants-
accused Nos.1 to 5 for the offences punishable under
Sections 148, 341, & 307 read with section 149 of IPC and
sentencing them to undergo R.I. for six months for the offence
punishable under Section 148 of IPC and sentencing them to
undergo S.I. for 15 days for the offence punishable under
Section 341 read with Section 149 of IPC and further
sentencing them to undergo R.I. for 3 years and to pay fine of
Rs.7,000/- each and in default to undergo further R.I. for one
year for the offence punishable under Section 307 read with
Section 149 of IPC. All sentences shall run concurrently.
This appeal coming for hearing on this day, the Court
delivered the following: -
JUDGMENT
This appeal filed under Section 374(2) of the Cr.P.C. by accused Nos.1 to 5 in S.C.No.134/2003 on the file of the Principal Sessions Judge at Kolar, is directed against the judgment of conviction and order of sentence dated 30th August 2005, convicting them for the offences punishable under Sections 148, 341 and 307 read with Section 149 of :3: IPC and sentencing them to undergo imprisonment for various periods and also to pay fine.
2. Appellants were charge sheeted by the Police Inspector, Rural Police Station, Chintamani, for the offences punishable under Sections 143, 147, 148, 321 and 307 read with Section 149 of IPC, interalia alleging that at about 10:00 p.m. on 16.10.2002, accused Nos.1 to 5 forming themselves into an unlawful assembly the common object of which was to commit murder of PW1-Ramesh, in the background of previous ill-will and animosity and in furtherance of the said common object, all of them armed with deadly weapons like chopper, axe, knife, long etc., was laid PW1 near the house of one Chowdappa in Doddaganjur village of Chintamani Taluk and committed acts of rioting on PW1 with the dangerous weapons, which they had held, thereby, caused grievous injuries and thereby the accused persons are guilty of having committed the aforesaid offences.
3. According to the prosecution, PW3- G.N.Krishnareddy and PW4-G.A.Radhakrishna being :4: eyewitnesses to the incident of assault on PW1, shifted him to the Government Hospital at Chintamani, where PW1 was treated initially by PW6-Dr.B.Y.Praveenkumar, who having regard to the serious condition of the injured, referred him to a major hospital and accordingly, the injured was brought to R.L.Jalappa Hospital & Research Centre, Tamaka, Kolar at about 00:30 hours on 17.10.2002, where he was treated as inpatient. Thereafter, the Authorities of R.L.Jalappa Hospital sent the intimation as per Ex.P4 to Gulpet Police Station at Kolar intimating the police that as the patient is in operation theatre, his statement should be recorded later. Thereafter, on 18.10.2002 at about 10:00 a.m. PW5- D.H.Munivenkatappa ASI, Gulpet Police Station, on being directed by PSI, went to the hospital and recorded the statement of PW1 about the incident, as per Ex.P1, in the presence of the Doctor treating him in R.L.Jalappa Hospital and on return from the Hospital, he sent the said recorded statement to Chintamani Rural Police Station on the point of territorial jurisdiction. PW8-Mohammed Rafi, PSI, Chintamani Rural Police Station, on receipt of Ex.P1 from Gulpet Police :5: Station through Head Constable Sri.Venkateshappa at about 02:30 p.m. on 18.10.2002, registered the case in Crime No.141/2002 and submitted the FIR to the jurisdictional Magistrate as per Ex.P5 and the FIR reached the jurisdictional Magistrate at 06:10 p.m. on the same day. PW8, during investigation, visited the scene of occurrence, conducted spot mahazar, seized the M.O. Nos.1 to 5 being weapons of offence, recorded the statements of PW3, PW4 and others, arrested and released the accused persons who appeared before him on 15.12.2002 along with the copy of the order of anticipatory bail. After completion of the investigation, PW8 laid charge sheet.
4. Upon committal of the case to the Court of Sessions, the accused appeared and pleaded not guilty for the charges leveled against them for the aforesaid offences.
5. During the trial, prosecution examined PW Nos.1 to 8 and marked documentary evidence as per Exs.P1 to P5. During their examination under Section 313 of Cr.P.C., the accused persons denied all the incriminating circumstances :6: appearing against them in the evidence of the prosecution witnesses. Accused did not choose to lead any defence evidence. The learned Sessions Judge, after hearing both sides and on assessment of oral as well as documentary evidence, by the judgment under appeal, held accused Nos.1 to 5 guilty of offences punishable under Sections 148, 341, 307 read with Section 149 of IPC and sentenced them accordingly. Aggrieved by the said judgment of conviction and order of sentence, accused Nos.1 to 5 are in appeal before this Court.
6. I have heard Sri.S.Shankarappa, the learned Counsel appearing for the appellants-accused and Sri.G.M.Sreenivasa Reddy, learned HCGP appearing for the respondent-State.
7. Sri.S.Shankarappa, learned counsel appearing for the appellants-accused would submit as under:
that the judgment under appeal is highly perverse and illegal inasmuch as the finding recorded by the learned Sessions Judge is not in accordance with the evidence on :7: record that the learned Sessions Judge has failed to consider the delay in recording the statement of the injured and since there is no proper explanation for the delay, the learned Sessions Judge ought to have held that the delay has been utilised by the complainant to falsely implicate the accused persons in the background of the previous ill-will and animosity; that in the absence of the evidence to show that PW1 was unconscious when he was brought to the Hospital at Chintamani, unexplained delay in recording the statement of PW1 assumes much importance; that since no evidence is produced to show the treatment of PW1 as inpatient in R.L.Jalappa Hospital from 00:30 hours on 17.10.2002, recording of the statement of PW1 as per Ex.P1 is highly doubtful; that Ex.P4 has not been proved as its author has not been examined and if Ex.P4 is disbelieved, there was no basis for PW5 to go to the Hospital to record the statement of PW1, therefore, Ex.P1 coming into existence at its purported time and place is highly doubtful; that in Ex.P1, there is nothing to indicate that the said statement was recorded in R.L.Jalappa Hospital and also the time at which it was :8: recorded; that admittedly, on the basis of Ex.P1 no case was registered in Gulpet Police Station, the Police Constable from Gulpet Police Station, who said to have carried Exs.P1 and P4 to Chintamani Rural Police Station and Dr.Vamshi Krishna in whose presence, Ex.P1 was stated to have been recorded were neither cited as witnesses in the charge sheet nor were examined before the trial Court, therefore, Ex.P1 coming into existence on 18.10.2002, in R.L.Jalappa Hospital is highly doubtful, as such no reliance can be placed on Ex.P1; that even according to PW6 the Doctor who gave First Aid treatment to PW1 in the Hospital at Chintamani, he immediately sent message to the Police and PW8-PSI, Chintamani Rural Police Station has admitted the receipt of information about the incident, therefore, it is clear that much earlier to the alleged statement, as per Ex.P1, the Police had the information about the incident, as such Ex.P1 cannot be treated as an information received first in point of time; that though PW8 on receipt of Exs.P1 and P4 said to have registered the case at 02:30 p.m. on 18.10.2002 and dispatched the FIR immediately, as per the endorsement of :9: the jurisdictional Magistrate, the FIR had reached him at 06:10 p.m., on that day and since there was no explanation for the delay in FIR reaching the jurisdictional Magistrate, the trial Court is not justified in believing the case of the prosecution; that admittedly, PW3 and PW4, who claim to be the eyewitnesses and who claim to have shifted the injured to the Hospital at Chintamani, did not lodge the complaint to the Police about the incident, which they alleged to have witnessed and on the other hand according to the statement of PW1 in Ex.P1, one Lokesh shifted him to Hospital, which is further corroborated by the contents of Ex.P4, wherein it is stated that the injured was brought to the Hospital by one Lokesh and these circumstances are sufficient to raise reasonable doubt about the presence of PW3 and PW4 at the alleged scene of occurrence and they having witnessed the alleged incident; that if really PW3 who is the close relative of PW1 and PW4 who is the close friend of PW1 had witnessed the alleged incident and had shifted the injured to the Hospital, as prudent persons they would have lodged a report about the incident immediately to the jurisdictional Police or : 10 : they would have furnished the details of the history to the Doctor at Hospital, therefore, this conduct of PW3 & PW4 completely rules out their presence at the alleged scene of occurrence, as such they cannot be treated as eyewitnesses; that since the wound certificate Ex.P3 issued by the Government Hospital at Chintamani by PW6 does not mention the names of the assailants, time as well as the place of alleged assault, the complicity of accused persons is highly doubtful and this probablises the defense theory of false implication, therefore, the trial Court has committed error in placing reliance on the testimony of PW3 and PW4; that if the evidence of PW3 and PW4 is discarded, then what remains is the evidence of PW1 and since the evidence of PW1 is not consistent and cogent, in the background of ill-will and animosity, possibility of PW1 falsely implicating the accused cannot be ruled out, therefore, in the absence of any corroboration, it is highly unsafe to place reliance on the testimony of PW1 to record the finding of guilt; that the evidence of PW1 with regard to assault on him is not consistent with the medical evidence, as according to PW1 : 11 : though all the five accused assaulted him with chopper, axe, knife and long, according to the medical evidence, there were only three injuries on his person and there were no corresponding injuries in relation to the overt act attributed against the accused Nos.1 and 3, therefore, the evidence of PW1 as to the involvement of accused Nos.1 and 3 is highly doubtful; that having regard to the nature of the injuries found on the person of PW1 as spoken to by PW6 and as described in Ex.P3, those injuries having been inflicted by knife and long is highly doubtful, as such overt act attributed against accused Nos.4 and 5 does not gain corroboration from the medical evidence; the seizure of MO Nos.1 to 5, which are stated to be the weapons for the offence is highly discrepant and inconsistent; that admittedly, bloodstained clothes of PW1 were not seized, the bloodstain found on the weapons has not been subjected to the Forensic examinations, under these circumstances, it is highly unsafe to place reliance on the interested testimony of PW1, as such, the judgment of conviction recorded by the trial Court based on the testimony : 12 : of PWs.1, 3 and 4 is highly perverse and is liable to be set aside.
8. In support of his contention, the learned counsel placed reliance on the following decisions: -
AIR 1973 SC 504, Thulia Kali Vs. The State of Tamil Nadu 1979 SCC (Cri) 1 Ganesh Bhavan Patel and another Vs. State of Maharashtra 1994 Cri.L.J.280 (SC) State of Gujarat Vs. Patel Mohan Mulji and another
9. On the other hand, Sri.G.M.Srinivasa Reddy learned Government Pleader sought to justify the judgment under appeal and contended that the trial Court on proper appreciation of oral and documentary evidence has recorded finding of guilt against the accused persons and since the findings recorded by the trial Court are sound and reasonable regard being had to the evidence on record, there are no good grounds to interfere with the well-reasoned judgment of the trial Court. He contended that merely because PWs.3 and 4 did not lodge a report about the incident to the Police : 13 : immediately, their role as eyewitness cannot be doubted. He contended that though there is some delay in recording the statement of PW1 and setting the criminal law into motion, the said delay has been satisfactorily explained by the fact that PW1 on account of the head injury was unconscious when he was brought to the hospital and he continued to be not in a position to give statement till morning of 18.10.2002 and at the earliest point of time, the statement of PW1 has been recorded by PW5, therefore, there has been no delay in recording the statement of P.W.1 and even if there is some delay, the same has been satisfactorily explained. He further contended that the delay in lodging the complaint by itself cannot be a ground to doubt the case of the prosecution, unless it is shown that the delay has been utilised to falsely implicate the accused persons. He contended that even if the role of P.Ws.3 and 4 - as eyewitnesses is doubted, evidence of P.W.1, who is the injured eye witness, is sufficient to find the accused persons guilty of the offences alleged against them, therefore, the Trial Court is justified in placing reliance on evidence of P.W.1. He further contended that the evidence of : 14 : injured eyewitness carries more weightage and evidence of such injured eyewitness is not required to be corroborated and evidence of such injured eyewitness can be the sole basis to record conviction. He contended that the minor discrepancies or inconsistency in the evidence of P.W.1, by itself cannot be a ground to discard his evidence. He contended that portion of the evidence of P.W.1 which does not gain corroboration from the medical evidence, could be termed as exaggeration and the rest of the evidence of P.W.1, could certainly be the basis to record conviction of the appellants. He contended that the evidence of P.W.1 read as a whole would clearly establish the presence of all the five accused persons at the scene of occurrence in a group holding deadly weapons and also the acts of rioting on him by the accused persons, therefore, there is ample evidence on record to establish beyond reasonable doubt that accused Nos.1 to 5 had formed an unlawful assembly by sharing a common object of committing murder of P.W.1 and in furtherance of the said common object they have committed acts of assault on P.W.1, therefore, the Trial Court is justified : 15 : in convicting the accused Nos.1 to 5 and there are no infirmities in the judgment of the Trial Court, as such there are no grounds to interfere with the judgment of the Trial Court. With these submissions, the learned Government Pleader sought for dismissal of the appeal.
10. Having regard to the facts and circumstances of the case and in the light of the submissions made on both sides, the points that arise for my consideration are: -
"1. Whether the judgment under appeal suffers from perversity or illegality warranting interference by this Court?
2. Whether the Trial Court is justified in holding the appellants - accused Nos.1 to 5 guilty of the offences punishable under Sections 148, 341 and 307 read with Sections 149 of the Indian Penal Code?"
11. As could be seen from the evidence on record, it is an admitted fact that prior to 16.10.2002, the date of alleged incident in question, a case and a counter case were pending before the Jurisdictional Court at Chintamani, against the accused and the prosecution witnesses, including P.Ws.1, 3 : 16 : and 4 and those two cases ended in acquittal by the judgment dated 16.10.2002. This previous litigation was projected as the motive by the prosecution for the accused to commit the incident alleged. This very factor was projected as a defence by the accused alleging that in the background of this previous ill-will and their acquittal in the case, the complainant has falsely implicated them in this case. It is fairly well settled that the motive is a double-edged weapon, which cuts on either side. Therefore, having regard to the evidence on record, the Court is required to find out as to in whose favour the balance tilts. It is also fairly well settled, if the prosecution rests its case on direct evidence, the motive recedes to background and it becomes insignificant.
12. According to the case of the prosecution, as noticed supra, the incident alleged occurred at about 09:30 p.m. on 16.10.2002 and the report about this incident was recorded in the form of the complaint at about 10:00 a.m. on 18.10.2002 in R.L.Jalappa Hospital, Kolar by P.W.5 and thereafter, on point of jurisdiction, the said statement was sent to Chintamani Rural Police Station, which was received : 17 : by P.W.8 at about 02:30 p.m. and on the basis of said report, case came to be registered and the First Information Report reached the Jurisdictional Magistrate at 06:10 p.m. on 18.10.2002. Thus, from this it is clear that the report as to the incident was recorded about 36 hours after the purported time of the incident, the case was registered about 42 hours after the purported time of the incident and the First Information Report reached the Jurisdictional Magistrate after about 3 hours of the registration of the case. On this basis, it could be said that there was some delay in lodging the report. Of course, in the case of Thulia Kali vs. The State of Tamil Nadu reported in AIR 1973 Supreme Court 501, the Apex Court has emphasized the importance of lodging an early report. The Apex Court has observed that "the First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the Police in respect of : 18 : commission of an offence is to obtain early information regarding the circumstances in which the crime was committed. The names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the First Information Report quite often results in embellishment, which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation". Therefore, the Apex Court has held that it is essential that the delay in lodging the First Information Report should be satisfactorily explained. There is absolutely no quarrel as to the legal principle laid down in the said decision. In the case on hand, according to the evidence on record, immediately after the incident, P.W.1 was brought to the Government Hospital, Chintamani, at about 11:30 p.m. or 11:45 p.m. The incident occurred in Doddaganjur village and injured was required to be brought to Chintamani town, which is about 7 kilometers distance. : 19 : Therefore, it is probable that sometime must have been taken to bring the injured to the Hospital. As could be seen from the evidence of P.W.6 - Dr. Praveenkumar, when he examined P.W.1 in Government Hospital at Chintamani, at about 11:45 p.m. on 18.10.2002, he noticed the following injuries: -
"1. Lacerated wound on the scalp, right parietal region, bone deep 3" in length with skull fracture.
2. Transverse chopped wound on right leg, lower 1/3rd bone deep, exposing underlined muscle on the lateral aspect 6" in length.
3. Incised wound on the right leg upper aspect, 7" in length, muscle deep."
13. P.W.6 has further stated that since the injured had skull fracture, he was referred to higher center. The perusal of cross-examination of P.W.6, indicates that the defence has not disputed the presence of injuries on the person of P.W.1, when P.W.1 was examined by P.W.6. In fact, the attempt on the part of the defence during the cross- examination of P.W.6 was only to suggest that P.W.1 sustained such injuries by accidental fall. Therefore, the : 20 : accused has not disputed the presence of injuries on the person of P.W.1, as spoken to by P.W.6. Regard being had to the fact that P.W.1 had sustained a serious head injury involving skull fracture, it is reasonable to presume that he was not in a position to speak. There is nothing in the evidence of P.W.6 to indicate that P.W.1 was conscious and was in a position to speak. Ex.P-4 is the intimation from R.L.Jalappa Hospital to Gulpet Police Station at Kolar, intimating the Police about the admission of P.W.1 with the history of assault. In Ex.P-4, it is clearly stated that the condition of the patient is not satisfactory and it is further stated therein that at about 12:30 a.m. on 17.10.2002 the patient was in operation theatre and at 07:05 p.m. the patient was in I.C.U. and was not able to give statement. No doubt, the person who has issued Ex.P-4 was not examined before the Trial Court. Nevertheless, this being an intimation issued from the Hospital and this having been submitted to the Jurisdictional Magistrate along with First Information Report on 18.10.2002 itself, it cannot be said that Ex.P-4 was a created document. Ex.P-4 bears the signature of the Police : 21 : Official who received the said information. P.W.8 has stated that he received both Ex.P-1 and Ex.P-4 from Gulpet Police Station, Kolar, through Head Constable - Venkateshappa. Therefore, it is reasonable to hold that Ex.P-4 was received by the Station House Officer of Gulpet Police Station and in view of the endorsement made therein about the condition of the patient, his statement could not be recorded immediately and ultimately the statement appears to have been recorded at about 10:00 a.m. on 18.10.2002, as spoken to by P.W.5. Thus, the delay in recording the statement of P.W.1, as to the incident has been satisfactorily explained. This injured was not in a position to make a statement when he was brought to the Hospital and soon after he regained his consciousness and ability to make a statement, his statement appears to have been recorded. Therefore, in my opinion the Trial Court is justified in holding that the delay in lodging the First Information Report, if any has been satisfactorily explained.
14. Of course, there is some evidence which indicates that P.W.6 soon after the injured was brought to the Hospital intimated the Police and P.W.8 had intimation about the : 22 : incident sometime in the early hours of 17.10.2002. Assuming for the purpose of argument that the Police had some information about this incident prior to Ex.P-1 coming into existence, that by itself cannot be a ground to hold that Ex.P-1 was not the information received first in point of time. It is not brought out in the evidence of P.W.6, as to what kind of information he passed on to the Police. In fact, from perusal of Ex.P-3 - wound certificate, issued by P.W.6, it is not forthcoming as to whether P.W.6 was informed about the names of the assailants, the time and place of the incident etc., which are necessary to constitute a cognizable offence. In Ex.P-3, it is merely stated that the injured was brought with a history of assault without giving further details as to the names of the assailants, place, time of assault, nature of the weapons used etc. In addition to this, the patient was immediately referred to a major Hospital and the injured was brought to R.L.Jalappa Hospital at about 00:30 hours on 17.10.2002. From this it is clear, within about 2½ hours of the incident, he was brought to R.L.Jalappa Hospital at Kolar. P.W.1 was not in a condition to speak and make a statement : 23 : in the early hours of 17.10.2002, intimation has been sent to Police, with further indication that the person was not in a position to make a statement. Therefore, though the Police had intimation about the injured having been brought to the Hospital with the history of assault, they were not in a position to record the statement of the injured. Under these circumstances, it cannot be said that Ex.P-1 was not the information received first in point of time. Of course, in Ex.P- 1, P.Ws.3 and 4 were projected as eyewitnesses. Therefore, the Police who had an intimation about some incident could have made enquiries and recorded the statement of any of the eyewitnesses. However, the very fact of P.Ws.3 and 4 having witnessed the incident alleged itself is seriously challenged. I shall consider the said argument little later. At this stage, it is suffice to note that Ex.P-1 was the information received first in point of time and it has been rightly treated as the First Information Report. There has been no delay in recording the First Information Report and little delay, if any, has been satisfactorily explained.
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15. The evidence of P.W.6 coupled with the contents of wound certificate Ex.P-3, which are not seriously challenged, clearly establishes that P.W.1 had sustained injuries, as noticed supra, in an incident of assault which occurred on 16.10.2002 in Doddaganjur village. As noticed supra, the accused also have not disputed the fact of P.W.1 sustaining some injuries on 16.10.2002.
16. The next aspect required to be considered by this Court is: -
"Whether the appellants - accused were responsible for the injuries sustained by P.W.1?"
17. As could be seen from the judgment under appeal, the Trial Court placing reliance on the testimony of P.Ws.1, 3 and 4 has held that the prosecution has proved the complicity of the appellants - accused for the injuries found on the person of P.W.1. The Trial Court having regard to the manner in which the accused persons inflicted injuries on P.W.1, as spoken to by P.Ws.1, 3 and 4, the parts of the body chosen for assault, the nature of the weapons used, came to the conclusion that the accused had shared common object of : 25 : committing murder of P.W.1 and in furtherance of such common object, they committed acts of assault on P.W.1. The correctness of this finding is assailed by the appellants.
18. According to the case of the prosecution, on the date of the incident at about 06:30 p.m., P.W.1 went to the house of P.W.2 - Venkateshappa in connection with certain chit transaction and after completing the work, he left the house of P.W.2 at about 09:30 p.m. and while he was returning to his house, in front of the house of one Chowdappa, all the accused persons way laid him and assaulted him with dangerous weapons. According to P.W.1, nearby the scene of occurrence P.Ws.3 and 4 were sitting and they tried to rescue him. P.Ws.3 and 4 in their evidence have stated that on 16.10.2002 that about 10:00 p.m., while they were sitting on a culvert, they saw P.W.1 going towards his house from the house of P.W.2 - Venkateshappa and at that time they saw the accused assaulting P.W.1 with axe, knife, dragger, long, chopper and causing severe injuries to P.W.1. According to them, they shifted the injured to the Government Hospital at Chintamani, in a car. P.W.3 is the : 26 : husband of the younger sister of mother of P.W.1, while P.W.4 is a good friend of P.W.1. Though P.Ws.3 and 4 have stated that they shifted the injured to the Government Hospital at Chitamani, the wound certificate produced as per Ex.P-3 issued by Government Hospital, Chintamani, does not indicate that the injured was brought to the said Hospital by P.Ws.3 and 4. Ex.P-3 does not specify the name of the person who brought the injured to the hospital. Ex.P-4 the intimation from R.L.Jalappa Hospital to the Police indicates that the injured was brought to the Hospital by one Lokesh. P.W.1 in his complaint statement, as per Ex.P-1 has stated that he was brought to the Hospital from the scene of occurrence by one Lokesh. Thus, there is no positive evidence to indicate that P.Ws.3 and 4 brought P.W.1 to the Hospital at Chintamani or at Kolar. On the other hand, the positive evidence on record indicates that one Lokesh brought the injured to the Hospital. If really P.W.3 who is a close relative of P.W.1 and P.W.4 who is a close friend of P.W.1, had witnessed the incident and had shifted the injured to the Hospital, their names would have been certainly found in the : 27 : Medico Legal Case Register maintained in the Hospital at Chintamani. Admittedly, P.Ws.3 and 4 did not lodge a complaint to the Police about the incident. According to the evidence of P.W.8, the statement of P.Ws.3 and 4 was recorded on 18.10.2002, after the registration of the case and during his visit to the village on that day. This indicates that for nearly two days after the incident, P.Ws.3 and 4 did not reveal to anyone about they having witnessed the incident of assault on P.W.1. Having regard to the close relationship of P.Ws.3 and 4 with P.W.1, if they had witnessed such an incident, they would certainly set the criminal law into motion by lodging a report. These two circumstances in my considered opinion create great amount of doubt about the presence of P.Ws.3 and 4 at the scene of occurrence and they having witnessed the incident alleged. The Trial Court without appreciating these circumstances and by merely referring to the oral evidence of P.Ws.3 and 4, has proceeded to hold that their evidence is consistent with the evidence of P.W.1, as such it is acceptable.
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19. The cross-examination is the acid test to find out the veracity of the evidence of the witness. The Court while evaluating the evidence of a witness will have to consider the answer elicited in the cross-examination or circumstances brought out therein and find out as to whether the testimony of witness is reliable or not. The Court is required to take into consideration all the circumstances brought out on record as to the conduct of the witness which may create doubt about the presence of the witness at the place of occurrence and find out as to whether the witness is a truth full witness.
20. In the case on hand, reading of the evidence of P.Ws.3 and 4 and the circumstances brought out on record, raises great doubt about P.Ws.3 and 4 having witnessed the incident of assault on P.W.1. If really they had witnessed such incident of assault on P.W.1, they would not have kept quite without reporting the same to the Police immediately and their name would have found place in the Medico Legal Case Register maintained in the Hospital at Chintamani, as the persons who brought the injured to the Hospital. The : 29 : silence on their part about two days in not revealing they having witnessed the incident to anyone, is sufficient to doubt their presence at the scene of occurrence. In the case of Ganesh Bhavan Patel and Another vs. State of Maharashtra reported in 1979 Supreme Court Cases (Criminal) 1, the Apex Court having regard to the delay in examining the eyewitnesses by the Investigating Officer has held that it has caused serious infirmity in the case of the prosecution. Having regard to the above discussions, I am of the considered opinion that the learned Trial Jude is not justified in accepting P.Ws.3 and 4 as eyewitnesses. Having regard to the above discussions, P.Ws.3 and 4 cannot be treated as eyewitnesses.
21. If P.Ws.3 and 4 are not considered as eyewitnesses, what remains is only the evidence of P.W.1. P.W.1, as noticed supra, is an injured eyewitness. It is well settled by catena of decisions that the evidence of an injured eyewitness does not require any corroboration and evidence of such witness could be the sole basis for recording conviction, if the evidence of such witness is found acceptable. Merely : 30 : because there was case and counter case between P.W.1 on the one hand and the accused on the other hand and both the case ended in acquittal on 16.10.2002 itself, it cannot be said that P.W.1 has falsely implicated the accused. P.W.1 being an injured had no reason to exculpate the real culpate, responsible for the injuries inflicted on him by inculpating innocent persons. The medical evidence on record has clearly established that he has suffered serious head injuries apart from two other injuries for which he was treated in a major Hospital. Therefore, it cannot be said that P.W.1 has falsely implicated the accused. Admittedly, accused are not strangers to P.W.1. It was argued by the learned counsel for the appellants that the incident occurred at about 10:00 p.m. and the reading of Ex.P-1 indicates that there was complete darkness at the scene of occurrence, therefore, P.W.1 was not in a position to identify the assailants. However, I find no force in this contention for the reason that accused and P.W.1 are known to each other being residents of the same village and also having fought litigation between them for several years prior to that date. The case and counter case between : 31 : them ended in acquittal on that very day. Therefore, even if there was some darkness, it cannot be said that P.W.1 was not in a position to identify the assailants. P.W.1 in his evidence has asserted the individual overt acts by each of the accused persons and also the nature of the weapon. Therefore, there is no difficulty in placing reliance on the evidence of P.W.1. Of Course, close scrutiny of evidence of P.W.1 indicates some amount of exaggeration, as to the role played by some of the accused persons.
22. It is the duty of the Court to swift the grain from the chaff and to separate the truth from the falsehood. According to the evidence of P.W.1, accused No.1 assaulted him with the chopper on the right shoulder and right forearm. However, from the evidence of P.W.6 and the contents of Ex.P-3, it is clear that there was no injury on the right shoulder and right forearm of P.W.1. Thus, the overt act attributed against accused No.1, as spoken to by P.W.1, does not gain corroboration from the medical evidence. Similarly, according to P.W.1, accused No.3 assaulted him with a knife on the waist. Again there is no medical evidence about the : 32 : presence of any injury on the waist. Thus, the overt act attributed against accused No.3, as spoken to by P.W.1, does not gain corroboration from the medical evidence. Therefore, the presence of accused Nos.1 and 3 is doubtful. The absence of any corresponding injury, in relation to the overt act attributed against accused Nos.1 and 3, the evidence of P.W.1 as to the role played by accused Nos.1 and 3 cannot be believed and it may be termed as exaggeration. The overt act attributed against accused No.2 that he assaulted with an axe on the right leg, overt act attributed against accused No.4 that he assaulted with a knife on the head, while accused No.5 assaulted with a long on the head, gains corroboration from the medical evidence, which indicates the presence of injuries on the right leg and head.
23. I find no substance in the argument from the learned counsel for the appellants that the knife and long cannot cause lacerated wound. P.W.6 who is Medical Expert, has stated that the injuries found on P.W.1 could be caused by a sharp edged weapon. Therefore, the evidence of P.W.1, with regard to the overt act attributed against accused Nos.2, : 33 : 4 and 5, is consistent with the medical evidence and there is no difficulty in accepting the said evidence. Therefore, from the evidence of P.W.1, the complicity of accused Nos.2, 4 and 5 is established. If, the complicity of accused Nos.1 and 3 is doubted, then only three assailants remained therein. It is not the say of P.W.1 that apart from these five accused persons there were any other persons. Therefore, the number of the assailants was less than five, as such the assembly could not be termed as unlawful assembly.
24. In that view of the matter, the provisions of Section 149 of the Indian Penal Code cannot be pressed into service. Therefore, each of the assailants are liable for their individual overt acts. Though P.W.6 has stated that the injuries were grievous in nature, the basis on which he has given such opinion is not forthcoming. It is not the say of P.W.6 that clinically he was able to see the skull fracture. There is no Radiological report for the skull fracture. The two other injuries as mentioned by P.W.6 are chopped wound and an incised wound. There is no indication of fracture of any of the bones underlying. The evidence on record does not : 34 : indicate that the injuries suffered by P.W.1 endanger his life or the injuries made him to suffer during the space of 20 days in severe bodily pain, or he was unable to follow his ordinary pursuits for such period. Therefore, there are no basis for describing the injuries as grievous in nature, as defined under Section 320 of the Indian Penal Code. As such, merely on the evidence of P.W.6, it cannot be held that P.W.1 had sustained grievous injuries.
25. Having regard to the facts and circumstances of the case and the discussions made above, I am of the opinion that the acts of assault were not with an intention to commit murder. Therefore, the acts committed by accused Nos.2, 4 and 5 does not satisfy the ingredients of offence punishable under Section 307 of the Indian Penal Code. In the absence of any acceptable evidence as to the grievous nature of the injuries, the acts committed by accused Nos.2, 4 and 5 would also not fall within the offence punishable under Section 326 of the Indian Penal Code. Having regard to the nature of the injury as described in Ex.P-3 and as spoken to by P.W.6, it is reasonable to hold that the injuries were inflicted by : 35 : dangerous weapons. Of course, the seizure of M.Os.1 to 5, is not convincing. M.Os.1 to 5 were also not subjected to Forensic examination. Therefore, it may be said that user of M.Os.1 to 5 is not satisfactorily established. Nevertheless, the evidence of P.W.1 as to the nature of the weapon used to inflict injuries on him clearly establishes that the injuries were inflicted on him by dangerous weapons. Therefore, in my opinion the acts committed by accused Nos.2, 4 and 5, attracts the offence punishable under Section 324 of the Indian Penal Code. Therefore, they are liable to be convicted for the said offence, while accused Nos.1 and 3 are entitled for an order of acquittal by extending benefit of doubt. The judgment of the Trial Court requires to be modified to the extent indicated above.
26. In the result, the appeal is allowed-in-part. In modification of the judgment of conviction and order of sentence passed by the Trial Court, accused Nos.2, 4 and 5 are convicted for the offence punishable under Section 324 of the Indian Penal Code, while accused Nos.1 and 3 are acquitted of all the charges levelled against them. : 36 :
27. Having regard to the facts and circumstances of the case, that the incident occurred in the year 2002 and there was a long standing litigation between the accused and P.W.1 and having regard to the punishment prescribed for the offence punishable under Section 324 of the Indian Penal Code, I deem it fit to sentence the convicted accused only to pay fine instead of sentencing them to imprisonment. Therefore, the accused Nos.2, 4 and 5 are sentenced to pay a fine of Rs.15,000/- each, for the offence punishable under Section 324 of the Indian Penal Code. On reliasation of the fine amount, a sum of Rs.40,000/- shall be paid to P.W.1 as compensation.
The bail bond and surety bond executed by the appellants - accused Nos.2, 4 and 5 stand cancelled.
The bail bond and surety bond executed by appellants - accused Nos.1 and 3 are ordered to be discharged.
Fine amount, if any deposited by the appellants - accused Nos.1 and 3 is ordered to be refunded to them. : 37 :
The appellant - accused Nos.2, 4 and 5 are granted four weeks time to deposit the fine amount.
Sd/-
JUDGE Pages 1 to 13 - Vnp* Pages 14 to 37 - Rsh