Karnataka High Court
Nagashetty vs State Of Karnataka on 6 December, 2021
Author: K.Somashekar
Bench: K.Somashekar
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO. 1154 OF 2011
BETWEEN:
Nagashetty
Aged about 23 years
S/o Chikkaningashetty
Hemaragala Village
Nanjangud Taluk
Mysore District.
...Appellant
(By Sri. P. Nataraju - Advocate for
M/s P. Nataraju Associates)
AND:
State of Karnataka
By Badanavalu Police Station
Nanjangud Taluk
Rep. by State Public Prosecutor
High Court Building
Bangalore.
...Respondent
(By Sri. Rahul Rai .K - HCGP )
This Criminal Appeal filed under Sec.374(2) of
Criminal Procedure Code, by the Advocate for the
appellant praying to set aside the judgment and order
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passed by the Presiding Officer, Fast Track Court-III at
Mysore in S.C.No.237/2010 dated 24.10.2011 and
acquit the appellant by allowing this appeal.
This criminal appeal coming on for hearing this
day, the court delivered the following:
JUDGMENT
This appeal is directed against the judgment of conviction and order of sentence rendered by the Trial Court in S.C.No.237/2010 dated 24.10.2011, convicting the accused for offences punishable under Sections 448 and 323 of the IPC, 1860. This appeal is filed seeking for consideration of the grounds urged in this appeal and consequently to allow the appeal and to set aside the judgment of conviction and order of sentence, for the grounds urged therein.
2. Heard the learned counsel Shri P. Nataraju for the appellant and the learned HCGP for the State who are present before court physically. Perused the judgment of conviction and order of sentence rendered 3 by the Trial Court in S.C.No.237/2010 dated 24.10.2011.
3. The factual matrix of the appeal is as under:
It transpires from the case of the prosecution that PW-1 / M. Mahadevashetty who is none other than the son of PW-2 / Chikkathayamma, had filed a complaint before the Badanavalu P.S. as per Exhibit P1 and based upon his complaint, Exhibit P4 / FIR has been recorded by PW-10 / D. Shivappa by avocation as an ASI, in the aforesaid P.S. It is alleged in his complaint that in his absence and also in the absence of his father, in their house situated at Badanavalu, at around 11.45 p.m. on 24.02.2010, that the offender namely Nagashetty S/o.
Chikkaningashetty is alleged to have trespassed into their house and made an attempt to take away the life of his mother / PW-2 Chikkathayamma by putting a pillow on her face and pressing it, so as to cause smothering. As a result, PW-2 / Chikkathayamma had 4 started shouting. On hearing the hue and cry made by PW-2, the complainant's senior uncle's sons namely Bellashetty, Basava S/o. Karishetty, Naganna S/o. Gopala Shetty had rushed to the house of the complainant including the general public who had also gathered at the scene of crime. But the offender namely Nagashetty is alleged to have fled away from that place leaving his green with yellow flower designed shirt with strips. Though on hearing the hue and cry made by PW-2, her neighbourers had rushed to the scene of crime and had attempted to apprehend the offender namely Nagashetty, but they failed in their attempt. Thereafter the neighbourers got admitted the complainant's mother PW-2 / Chikkathayamma in Nanjangud Hospital to provide treatment to her. In pursuance of the act of the accused, a complaint was filed by M. Mahadevashetty, S/o. Amase Madashetty, on 26.02.2010 at around 1.30 p.m. but the incident is alleged to have taken place on 24.02.2010. In spite of 5 the delay of 2 days in filing, criminal law was set into motion by recording an FIR as per Exhibit P4. Subsequent to registration of the crime, the I.O. was examined as PW-13 and had taken up the case for investigation and thoroughly investigated the case and drew the spot mahazar as per Exhibit P2 and also collected the Wound Certificate at Exhibit P5 inclusive of the demand register extract at Exhibit P6 relating to the scene of crime and laid the charge-sheet against the accused consisting of the statement of witnesses.
4. Subsequent to laying of a charge-sheet by the I.O. against the accused, the learned JMFC, Nanjangud took cognizance of the case. Thereafter, the case was committed to the Committal Court by following the provisions of Sections 207 and 208 Cr.P.C. and passed an order under Section 209 of the Cr.P.C. Accordingly, the case has been committed to the Court of Sessions and accordingly, the case was assigned for trial in 6 S.C.No.237/2010. Thereafter, the Trial Court framed charge against the accused for offences punishable under Sections 307, 448 of the IPC, 1860 whereby the accused had declined the charges framed against him but claimed to be tried. Subsequent to framing of charge by the Trial Court for the aforesaid offences, the prosecution let in evidence by examining PW-1 to PW-13 and got marked Exhibits P1 to P6 and so also got marked contradictory statements at Exhibits D1 to D8. Subsequent to closure of the evidence on the part of the prosecution, the accused was examined as required under Section 313 of the Cr.P.C. to enable him to answer the incriminating evidence appearing against him. But the accused had denied the truth of the evidence of the prosecution. Subsequent to recording the incriminating statements, the accused did not come forward to adduce any defence evidence as contemplated under Section 233 Cr.P.C.
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5. Subsequent to closure of the evidence on the part of the prosecution and even got marked contradictory statements at Exhibits D1 to D8 and on hearing the arguments advanced by the Public Prosecutor and so also the defence counsel and on considering the evidence let in by the prosecution, the Trial Court held acquittal for offences under Section 307 IPC and held conviction as regards offences under Section 323 IPC relating to voluntarily causing injuries and so also for offences under Section 448 of the IPC, 1860. It is this order/judgment which is under challenge in this appeal urging various grounds.
6. Learned counsel for the appellant has taken me through the evidence of PW-1 / M. Mahadevashetty who is the author of the complaint at Exhibit P1 and so also the evidence of PW-2 / Chikkathayamma who is none other than the mother of PW-1 and so also who is none other than the wife of PW-5 / Amase Madashetty. But 8 the evidence of PW-1, PW-2 and PW-5 runs contrary to the evidence of PW-6 / Naganna and PW-7 / Kochigopashetty and they have given a go-by to the versions of their statements marked at Exhibits D6, D7 and D8 respectively and even contradictory statement of PW-5 has been got marked at Exhibit P5 and the contradictory statement of PW-3 has been got marked at Exhibits D3 and D4 inclusive of the contradictory statement of PW-2 / Chikkathayamma at Exhibits D1 and D2. But the Trial Court did not appreciate the evidence in a proper perspective manner. Therefore, in this appeal, it requires for re-appreciation of the evidence, whereby the Trial Court was misdirected and erroneously come to the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt.
7. The second limb of arguments advanced is that the accused has been convicted by the Trial Court without appreciation of the evidence of PW1, PW2 and 9 PW5 who are the material witnesses and also prime witnesses on the part of the prosecution. But their evidence runs contrary to the evidence of PW-7 and PW- 8 and they are the eye witnesses relating to the statements which they have given during the course of investigation before PW-13 / I.O. But the Trial Court has failed to consider the omissions and contradictions in the evidence of the aforesaid prime witnesses on the part of the prosecution. Even not noticed the allegations made by the complainant who was examined as PW-1 insofar as the accused had caused smothering by thrusting a pillow on her face. Though it is alleged that the accused had forcibly put a pillow on PW-2 / Chikkathayamma and had tried to kill her, but there is no whisper about the same by PW-7 or PW-8 as regards such an allegation of smothering caused to PW-2. Even there is no worthwhile evidence elicited on the part of the prosecution to arrive at a conviction regarding the same. The Trial Court has further failed to notice that 10 the complaint at Exhibit P1 has been launched by PW-1 to set up a theory in order to make some unlawful gain if possible through the accused, though the accused has not at all committed the alleged offences. But the Trial Court only on assumptions and presumptions and not on the basis of proper appreciation of the evidence facilitated by the prosecution, has erroneously come to the conclusion that the prosecution has proved the guilt of the accused as regards offences under Section 448 relating to trespass into the house of PW-1 and also to have caused voluntary injuries indicated at Exhibit P5 of the Wound certificate. On all these premise, learned counsel for the appellant seeks for intervention under this appeal. If not, the gravamen of the accused relating to the accusation made against him would be the sufferer and if not interfered with in this appeal by considering the grounds urged, certainly the accused would be the sufferer and there shall be a miscarriage of justice. On all these premise, the learned counsel seeks 11 to allow this appeal and consequently to set aside the judgment of conviction and order of sentence rendered by the Trial Court. Consequent upon setting aside the impugned judgment of conviction for offences under Sections 448 and 323 of the IPC, thereby to acquit the accused for the alleged offences.
8. Per contra, learned HCGP for the State has taken me through the evidence of PW-1 / M. Mahadevashetty who is the author of the complaint at Exhibit P1. He has narrated in his complaint as to how the accused had committed the offence by trespassing into the house, whereby PW-2 / Chikkathayamma was alone in the house and made attempt to take away her life by putting a pillow on her face by smothering her. But due to the hue and cry of PW-2 / Chikkathayamma, neighbours had gathered at the scene of crime. On seeing them, the accused had fled away from the spot. Subsequent to registration of the crime by recording an 12 FIR as per Exhibit P4, criminal law was set into motion and then the I.O. has conducted the spot mahazar at Exhibit P2 in the presence of PW-8 / Rangamma and secured the Wound Certificate at Exhibit P5 issued by PW-11 / Dr. H.P. Venkatesh. However, the prosecution has not established the guilt against the accused under Section 307 of the IPC, 1860 but PW-10 / D. Shivappa who is an ASI had recorded the FIR as per Exhibit P4 and PW-13 / B.M. Srinivas is the PSI who laid the charge-sheet against the accused, have spoken on the part of the prosecution to prove the guilt of the accused. However, the evidence of PW-2 / Chikkathayamma who is an injured, PW-3 / N. Bellashetty, PW-4 / Basava and PW-6 / Naganna have spoken in their evidence on the part of the prosecution that the accused had taken to heel from there on seeing them. But PW-3 / N. Bellashetty has withstood his statement and has stated in his evidence that he had seen the accused while he was running away from the scene of crime, with the 13 help of a torch light. But it is stated on the part of the prosecution that on hearing the sound made by PW-2 / Chikkathayamma, neighbours of the complainant who were witnesses who have been subjected to examination, as stated supra are said to have rushed to the house of PW-2 and found that she had sustained some injuries and she had informed that accused is the assailant. But she has not specifically told that accused had made an attempt to take away her life. But she did not give statement as regards the same at Exhibit D1 and D2. She has not whispered anything about causing smothering to her with the help of MO-1 / pillow in the presence of the Doctor who had issued Wound Certificate at Exhibit P5. The prosecution has failed to establish the guilt of the accused as regards the said aspect. However, the prosecution has been able to prove the guilt of the accused, whereby the accused had caused simple injuries on the person of PW-2 / Chikkathayamma by assaulting her with means of his 14 hands and also trespassed into her house. Therefore, the accused are deserving for the sentence awarded by the Trial Court for offences under Sections 448 and 323 of the IPC, 1860. Accordingly, the Trial Court has appreciated the evidence on record in a proper perspective and has come to the right conclusion. Therefore, under this appeal, it cannot arise for intervention as sought for by considering the grounds urged in this appeal. On this premise, he seeks for dismissal of this appeal as being devoid of merits and consequently to confirm the judgment of conviction and order of sentence rendered by the Trial Court in S.C.No.237/2010 dated 24.10.2011.
9. It is in this context of contentions as taken by the learned counsel for the appellant and so also the counter made by the learned HCGP for the State that criminal law was set into motion based upon the complaint at Exhibit P1 made by 15 PW-1/M. Mahadevashetty. The complaint was received by PW-10 / D. Shivappa who is an ASI of Badanavalu P.S. Subsequent to registration of the crime, the I.O. has visited the scene of crime and drew the spot mahazar at Exhibit P2. Even during the course of the mahazar, MO-1 / pillow and MO-2 / shirt of the accused was seized. But criminal law was set into motion by recording an FIR at Exhibit P4 for the offences punishable under Section 307 of the IPC, 1860 inclusive of offences under Section 448 of the IPC. But the Trial Court held acquittal for the offences under Section 307 of the IPC. However, conviction as regards offences under Section 448 relating to trespass into the house of PW-2 / Chikkathayamma and causing some sort of simple injuries as indicated at Exhibit P5 Wound Certificate issued by PW-11 Doctor H.P. Venkatesh.
PWs 4, 5 and 6 are neighbours of PW-2 / Chikkathayamma who have been subjected to
examination on the part of the prosecution. On hearing 16 the sound made by PW-2 on 24.02.2010 at around 11.30 p.m. they are said to have rushed to the scene of crime and found that one person was about to take heel from the house of PW-2 / Chikkathayamma. But PW-3 / N. Bellashetty who has been subjected to examination on the part of the prosecution has stated that he had seen the accused while he took heel from there, with the help of a torch light. Even neighbourers have made an attempt to apprehend the accused person, but their attempt had gone in vain. But subsequent to the offender who is alleged to have took to heel from there, the aforesaid neighbouring persons PWs 3, 4 and 6 went inside the house of PW-2 / Chikkathayamma, and noticed that she had sustained some scratch marks on her neck with means of nails. On enquiry with the victim PW-2 / Chikkathayamma, she had informed that the accused had assaulted her. But PW-3 / N. Bellashetty has given a reply during the course of his cross-examination that he did not give statement before 17 the I.O. as per Exhibit D4 to the effect that when they came in front of the house of PW-2 / Chikkathayamma who is his aunt and knocked the door of his aunt, she was shouting. But he did not support the case of the prosecution and consequently his statement was got marked at Exhibit D3 wherein he did not withstand his statements. PW-5 and PW-6 also did not withstand their statements given in their evidence, which is at Exhibits D5 to D7. They had stated in their examination before the I.O. to the effect that in spite of calling PW-2 / Chikkathayamma to open the door, but it was not opened. But PW-2 / Chikkathayamma was shouting when they knocked the door forcibly. These are the evidence which find place on the part of the prosecution as this contention is made by the learned counsel for the appellant for seeking intervention as there is no worthwhile evidence given by the prosecution.
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10. PW-12 / Somaiah who is the Village Panchayath Secretary of Devanur Grama Panchayath, had issued the demand register extract at Exhibit P6 relating to the scene of crime, that is the house of PW-2 / Chikkathayamma. But he had issued only the demand extract register at Exhibit P6. But PW-9, PW- 10 and PW-13 are the official witnesses. But ASI of Badanavalu P.S. who is examined as PW-10 and PW-13 / B.M. Srinivas, Police Inspector though they have been subjected to examination relating to the averments made in the complaint at Exhibit P1 and so also the substances at Exhibits P4 of the FIR, but at a cursory glance of the evidence of PW-2 / Chikkathayamma, PW- 3 / N. Bellashetty, PW-4 / Basava, PW-6 / Naganna, it is seen that their evidence runs contrary to each other relating to the averments made in the complaint at Exhibit P1 and this complaint has been made by PW-1 M. Mahadevashetty who is none other than the son of PW-2 / Chikkathayamma. But PW-5 / Amase 19 Madashetty is none other than the husband of PW-2 / Chikkathayamma and they are interested witnesses on the part of the prosecution. But PW-2, PW-3, PW-5, PW-6 and PW-7 have been subjected to examination on the part of the prosecution but they did not withstand the versions of their statements at Exhibits D1 to D8 respectively. Even the spot mahazar at Exhibit P2 and even the Wound Certificate at Exhibit D5 and even the pillow / MO-1 alleged to be used by the accused for causing smothering to Chikkathayamma, but on the part of the prosecution, no witnesses have whispered anything relating to the ingredients of the offences under Section 307 of the IPC as regards the attempt made by accused to take away the life of PW-2. But the Trial Court had arrived at a conclusion that the prosecution has proved the guilt of the accused under Section 323 of the IPC, 1860. But Section 323 of the IPC relates to voluntarily causing hurt. Even to attract the essential ingredients of the said offence, if hurt 20 caused is simple in nature, a person cannot be held guilty of voluntarily causing grievous hurt even if it was in his contemplation. Though charges were made against the accused under Section 307 of the IPC, but the ingredients of Section 307 of the IPC to take away the life of the injured has not been proved by the prosecution. Hence, the Trial Court has acquitted the accused for offences under Section 307 IPC. But the Trial Court had held conviction for offences under Section 323 of the IPC, 1860 even though the prosecution did not facilitate worthwhile evidence as regards the said offences. Further, the accused has been convicted for offences under Section 448 of the IPC as well, which relates to house trespass. But on the part of the prosecution, PW-2 to PW-7 have been subjected to examination. But nothing worthwhile has been elicited through these witnesses to support the case of the prosecution to prove the guilt of the accused for offences under Section 448 of the IPC, 1860 relating 21 to house trespass. But PW-11 being a Doctor who has been subjected to examination the injured PW-2 / Chikkathayamma has specifically stated in his evidence that there are no chances of causing some injures found in Exhibit P5 on the face of PW-2 / Chikkathayamma even by using MO-1 / pillow while accused is alleged to have caused smothering of PW-2 / Chikkathayamma. If any pressure was applied on her face by way of thrusting the pillow over her face, even with any hard object, it would not have been possible to have caused injures on her face as indicated in Exhibit P5 of the wound certificate. Though PW-11 / Dr. H.P. Venkatesh has been subjected to examination, but nothing worthwhile has been elicited to even corroborate the evidence of PW-11 with the independent witnesses namely PW-1 / M. Mahadevashetty, PW-2 / Chikkathayamma being the injured, her husband PW-5 / Amase Madashetty. PW-11 has been subjected to examination on the part of the prosecution where PW-2 22 / Chikkathayamma was accompanied by a police Lakshminarayana at around 2.00 a.m. on 25.02.2010 with a history of assault. The Doctor had noticed some abrasion injuries over her right cheek and also over her right forehead and over her upper lip and even on the lower lip and so also tenderness over the anterior and lateral aspect of the neck as indicated at Exhibit P5 / Wound certificate. But PW-11 Doctor has stated in his evidence that there are chances of sustaining the said injures if assaulted with hands. But later on, he has stated that there is no chance of sustaining such injures if anybody tries to smother with the help of MO- 1 / pillow. But he has not mentioned at Exhibit P5 that the injured had been brought by a Police Constable Lakshminarayana to the hospital in order to provide treatment to her. He has not specifically mentioned the history was given by PW-1 / Mahadeva Shetty. There is some discrepancy in writing relating to the time subjected to examination of PW-2 / Chikkathayamma. 23 And even after two days, the criminal law was set into motion by recording an FIR as per Exhibit P4.
11. But at a cursory glance of the evidence of the prosecution witnesses, it is a domain vested with the prosecution to prove the guilt of the accused beyond all reasonable doubt relating to the fact which has been narrated in the complaint. Even the prosecution theory requires to be corroborated, whereby the accused had taken to heel from the scene of crime on seeing that neighbourers had gathered. But the Trial Court has come to the conclusion that the prosecution has successfully established the guilt for the offences under Sections 448 and 323 of the IPC but held acquittal for offences under Section 307 of the IPC, 1860.
12. It is well-known principle of law that the reliance can be based upon even solitary statement of witnesses if the Court comes to the conclusion that the said statement is the true and correct version of the 24 case of the prosecution. In this regard it is relevant to refer the case in Raja v. State (1997) 2 Crimes 175 (Del). Insofar as Section 134 of the Indian Evidence Act, 1872 it is the quality of evidence and not the quantity of the evidence which is required to be judged by the Court to place credence on the statement as referred in the decision of Hon'ble Apex Court reported in State of Uttar Pradesh v. Kishanpal, 2008 (8) JT 650. Further, in respect of plurality of witnesses, in the matter of appreciation of the evidence of witnesses, it is not the number of witnesses, but quality of their evidence which is important, as there is no requirement in law of evidence that any particular number of witnesses are to be examined to prove/disprove a fact. But the evidence must be weighed and not counted. The test is whether the evidence has a ring of trust, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of 25 witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act. In this regard, it is relevant to refer the reliance of AIR 2013 SC 1204. Further, the law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony of a single witness, into three categories, namely,
i) wholly reliable,
ii) wholly unreliable and
iii) neither wholly reliable nor wholly unreliable. In the first two categories, there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable 26 testimony, direct or circumstantial, before acting upon testimony of a single witness. It is relevant to refer the reliance of AIR 2003 SC 854 in the case of Lallu Manjhi v. State of Jharkhand.
13. But in the instant case, PW-1 / M. Mahadevashetty is the author of the complaint at Exhibit P1 and based upon his complaint, criminal law was set into motion by recording an FIR as per Exhibit P4 and he is none other than the son of PW-2 / Chikkathayamma and Chikkathayamma is the injured and whereby PW-11 Doctor had issued the Wound Certificate at Exhibit P5. PW-5 / Amase Madashetty is none other than the father of PW-1 / M. Mahadevashetty and who is none other than the husband of PW-2 / Chikkathayamma. Though the prosecution had made attempt to prove the guilt of the accused by facilitating the evidence of PW-2 to PW-7, but these witnesses did not withstand the versions of 27 their statements of Exhibits D1 to D8 and their evidence runs contrary to each other and is camouflaged. But when clouds of doubt arises in the theory put forth by the prosecution, benefit of doubt is accrued on the part of the accused alone.
14. In the instant case, despite of contradictory statements at Exhibits D1 to D8 found in the evidence of PW-2 to PW-7, even PW-7 and PW-8 did not withstand the versions of their statements, they being eye-witnesses as arrival of conclusion erroneously. But at a cursory glance of the entire case of the prosecution, it does not repose confidence in the mind of the court that the prosecution has proved the guilt of the accused beyond all reasonable doubt.
15. In the instant case, the accused had entered into the house of PW-2 / Chikkathayamma and her son PW-1 / M. Mahadevashetty had filed a complaint as per Exhibit P1 and based upon his complaint, criminal law 28 was set into motion by recording an FIR as per Exhibit P4. But PW-2 to PW-7 had been subjected to examination but in totality of the testimony of these witnesses and also contradictory statement which were got marked even during the course of their evidence on the part of the prosecution, though the prosecution has subjected to examination those witnesses, but they have not supported the case absolutely and even delay in lodging the complaint is almost all two days, after lapse of the occurrence of the incident and that too, the allegation that the accused had entered into the house of PW-2 / Chikkathayamma and made attempt to take away her life by putting the pillow / MO-1 on her face by causing smothering. But PW-11 being a Doctor who subjected to examination and issued the Wound Certificate at Exhibit P5. But delay in lodging the complaint as regards causing injuries on her face, has not been satisfactorily explained on the part of the prosecution. Therefore, taking all the facts into 29 consideration, it is held that the prosecution has not been able to prove the case at all against the accused beyond shadow of all reasonable doubt even to arrive at a conviction for offences under Section 323 of the IPC, 1860. But the Trial Court has held acquittal for offences under Section 307 of the IPC even though charge has been framed against the accused.
16. The offences under Section 448 of the IPC for house trespass where the accused had entered into the house of PW-2 / Chikkathayamma as on the date of the incident narrated in the complaint made by PW-1 as per Exhibit P1 and based upon his complaint, criminal law was set into motion as per Exhibit P4. But in the instant case, there are major contradictions in the statement of witnesses on material points and even the official witnesses had made every effort even to set up a theory on the part of the prosecution even better than the allegation made in the complaint, of using MO-1 / 30 pillow. But, PW1 to PW7 who were examined on the part of the prosecution have given a go-by to the versions of certain parts of their statements which are contrary statements which have been got marked. When the essential material facts are disclosed in the material at Exhibit P4 / FIR, but FIR is not a substantive evidence and it cannot be used to contradict the testimony of the eye-witnesses except that it may be used for the purpose of contradicting the maker of the report. Therefore, even for the aforesaid reasons and on a close scrutiny of the evidence of the prosecution, this court can safely come to the conclusion that the prosecution has not been able to establish the guilt of the accused beyond all reasonable doubt and consequently the accused deserves to be acquitted. But the Trial Court had misdirected the evidence of PW-1 to PW-7 and misread the evidence of the prosecution and erroneously come to the conclusion that the prosecution has proved the guilt of the accused 31 for the offences punishable under Sections 448 and 323 of the IPC, 1860. Therefore, for the aforesaid reasons, it is opined that the accused deserves for acquittal.
17. It is the domain vested with the prosecution to prove the guilt of the accused by facilitating worthwhile evidence that too, consistent, corroborative and positive evidence so as to probabilise that the accused has committed the alleged offences. If worthwhile evidence is not facilitated, the benefit of doubt always accrues on the part of the accused alone under the Doctrine of Criminal Justice Delivery System. In the instant case, it is opined that the prosecution has miserably failed to prove the guilt of the accused by facilitating worthwhile evidence. Consequently, accused deserves for acquittal in view of the fact that the impugned judgment requires interference by re-appreciating the entire evidence on record. If not, the accused who is a gravamen of the accusation would be the sufferer and also it would 32 result in a miscarriage of justice. In view of the aforesaid reasons and findings, I proceed to pass the following:
ORDER The appeal preferred by the appellant / accused under Section 374(2) of the Cr.P.C. is hereby allowed. Consequently, the judgment of conviction and order of sentence rendered by the Trial Court in S.C.No.237/2010 dated 24.10.2011 is hereby set aside. Consequent upon setting aside the impugned judgment of conviction rendered by the Trial Court, the accused is acquitted for the offences punishable under Sections 448 and 323 of the IPC, 1860. If the accused had executed any bail bond, the same shall stand cancelled.
Sd/-
JUDGE KS