Karnataka High Court
Sri. Mohan Kumar Hegde @ Mohana vs The State Of Karnataka on 30 October, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF OCTOBER, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE ANIL B. KATTI
CRIMINAL APPEAL No.70 OF 2017 (A)
C/w. CRIMINAL APPEAL No.1154 of 2016 (C)
CRIMINAL APPEAL No.1644 of 2016 (C) &
CRIMINAL APPEAL No.71 of 2017 (C)
In Criminal Appeal No.70/2017 :
BETWEEN:
The State of Karnataka,
Represented by the
Sub-Inspector of Police,
Puttur Rural Police Station,
Puttur, D.K.,
Represented by
State Public Prosecutor,
High Court Building,
Bengaluru-560 001. .. Appellant
( By Sri Vinay Mahadevaiah, HCGP )
AND:
1. Sri Mohan Kumar Hegde
@ Mohana,
S/o Purushothama Hegde,
Aged about 32 years,
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C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
Rickshaw Driver,
R/o Tharigudde House,
Chikkamudnoor Village,
Puttur Taluk,
D.K.-574201.
2. Smt. Hemalatha,
W/o Sundara Poojary,
Aged about 35 years,
Household work,
R/o Santhosha Nilaya,
Bannur Village,
Puttur Taluk,
D.K.-574201.
3. Sri Prashanth,
S/o Gangadhara Poojary,
Aged about 26 years,
Rickshaw Driver,
R/o Kaipangala,
Ottemundoor House,
Puttur Taluk,
D.K.-574201. .. Respondents
( By Sri Suyog Herele E., Advocate for R-1,
Sri G.C.Sri Harsha, Advocate for Sri Nishit Kumar Shetty,
Advocate for R-2,
and Sri Nihal Abdul Rahiman and
Sri Madhukeshawara Reddy, Advocates for
Sri B.S.Sachin, Advocate for R-3 )
This Criminal Appeal is filed under Section 378(1) and (3)
of Code of Criminal Procedure, praying to grant leave to appeal
against the judgment and order dated 28.04.2016, passed in
Sessions Case No.90/2012 on the file of the V Addl.District and
Sessions Judge, D.K., Mangalore, sitting at Puttur, D.K.,
acquitting the respondent/accused No.2 for the offences
punishable under Sections 326, 120(B), 307 read with Section
34 of IPC and respondents/accused No.1 and 3 for the offence
punishable under Section 307 of IPC and set aside the
aforesaid judgment and order dated 28.04.2016, passed in
Sessions Case No.90/2012 on the file of the V Addl.District and
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C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
Sessions Judge, D.K., Mangalore, sitting at Puttur, D.K.,
acquitting the respondent/accused No.2 for the offences
punishable under Sections 326, 120(B), 307 read with Section
34 of IPC and accused No.1 and 3 for the offences punishable
under Section 307 of IPC and convict and sentence the
respondent/accused No.2 above named for the offences
punishable under Sections 326, 120(B), 307 read with Section
34 of IPC and accused No.1 and 3 for the offence punishable
under Section 307 of IPC for which they have been charged, in
accordance with law, in the interest of justice.
In Criminal Appeal No.1154/2016 :
BETWEEN:
Sri Mohan Kumar Hegde
@ Mohana,
S/o Purushothama Hegde,
Aged about 32 years,
Auto Rickshaw Driver,
R/at Tarigudde House,
Chikkamudnoor Village,
Puttur Taluk,
D.K.-574 202. .. Appellant
( By Sri Suyog Herele E., Advocate )
AND:
The State of Karnataka,
Through Sub-Inspector,
Puttur Rural Police, D.K.,
Represented by the
State Public Prosecutor,
High Court Buildings,
Bengaluru-560 001. .. Respondent
( By Sri Vinay Mahadevaiah, HCGP )
This Criminal Appeal is filed under Section 374 of Code of
Criminal Procedure, praying to allow this appeal, set aside the
judgment and order of conviction dated 28.04.2016 and
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C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
30.04.2016 passed by the learned V Addl.District & Sessions
Judge, DK., Mangalore, Sitting at Puttur, D.K., in Sessions Case
No.90/2012 thereby convicting the appellant for the offence
punishable under Section 120(B) read with Section 34 and
Section 326 read with Section 34 of IPC and consequently
acquit the appellant for all the charges leveled against him in
the ends of justice.
In Criminal Appeal No.1644/2016 :
BETWEEN:
Prashanth,
S/o Gangadhara Poojary,
Aged about 26 years,
Rickshaw Driver,
R/o Kaipangala,
Ottemundoor House,
Narimogru Village,
Puttur Taluk, D.K.,
574201. .. Appellant
( By Sri Nihal Abdul Rahiman and
Sri Madhukeshawara Reddy, Advocates for
Sri B.S.Sachin, Advocate )
AND:
State by Sub-Inspector of Police,
Puttur Rural P.S., D.K.,
Represented by S.P.P
High Court of Karnataka,
Bengaluru-560 001. .. Respondent
( By Sri Vinay Mahadevaiah, HCGP )
This Criminal Appeal is filed under Section 374(2) of Code
of Criminal Procedure, praying to set aside the conviction and
sentence dated 28.04.2016 and 30.04.2016 passed in Sessions
Case No.90/2012 on the file of V. Addl.District and Sessions
Judge, D.K., Mangalore, Sitting at Puttur, D.K. in the interest of
justice.
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C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
In Criminal Appeal No.71/2017 :
BETWEEN:
The State of Karnataka,
Represented by the
Sub-Inspector of Police,
Puttur Rural Police Station,
Puttur, D.K.,
Represented by
State Public Prosecutor,
High Court Building,
Bengaluru-01. .. Appellant
( By Sri Vinay Mahadevaiah, HCGP )
AND:
1. Sri Mohan Kumar Hegde
@ Mohana,
S/o Purushothama Hegde,
Aged about 32 years,
Rickshaw Driver,
R/o Tharigudde House,
Chikkamudnoor Village,
Puttur Taluk, D.K.-574201.
2. Sri Prashanth,
S/o Gangadhara Poojary,
Aged about 26 years,
Rickshaw Driver,
R/o Kaipangala,
Ottemundoor House,
Puttur Taluk,
D.K.-574201. .. Respondents
( By Sri Suyog Herele E., Advocate for R-1,
and Sri Nihal Abdul Rahiman and
Sri Madhukeshawara Reddy, Advocates for
Sri B.S.Sachin, Advocate for R-2 )
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C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
This Criminal Appeal is filed under Section 377 of Code of
Criminal Procedure, praying to modify the judgment and order
dated 28.04.2016, passed by the learned V Addl.District and
Sessions Judge, D.K., Mangalore, sitting at Puttur, D.K., in
S.C.No.90/2012 in awarding meager sentence to the accused
for the offences punishable under Sections 326, 120 (B) read
with Section 34 of IPC, impose proper and adequate and
maximum sentence to the accused for the offences punishable
under Sections 326, 120 (B) read with Section 34 of IPC and
grant such other relief as deems fit in the facts and
circumstances of the case, in the interest of justice and equity.
These Criminal Appeals having been heard through
Physical Hearing/Video Conference and reserved for Judgment
on 21.09.2023, coming on for pronouncement this day,
Dr. H.B.PRABHAKARA SASTRY, J., delivered the following :
COMMON JUDGMENT
Criminal Appeal No.1154/2016, Criminal Appeal
No.1644/2016 and Criminal Appeal No.71/2017 have been
filed against the judgment of conviction dated 28.04.2016
and order on sentence dated 30.04.2016 and Criminal
Appeal No.70/2017 has been filed against the judgment of
acquittal dated 28.04.2016, for the offences punishable
under Sections 326, 120-B, 307 read with Section 34 of
the Indian Penal Code, 1860 (hereinafter for brevity
referred to as `the IPC'), passed by the learned
V.Addl.District and Sessions Judge, Dakshina Kannada,
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Mangaluru, Sitting at Puttur, D.K., (hereinafter for brevity
referred to as the `Sessions Judge's Court') in Sessions
Case No.90/2012.
2. In Criminal Appeal No.1154/2016 and Criminal
Appeal No.1644/2016, accused Nos.1 and 3 have
challenged their conviction for the offences punishable
under Sections 120-B, 326 read with Section 34 of IPC.
Criminal Appeal No.70/2017 and Criminal Appeal
No.71/2017 are filed by the State.
In Criminal Appeal No.70/2017, the State has challenged
the acquittal of accused No.2 for the offences punishable
under Sections 326, 120-B, 307 read with Section 34 of
IPC. In Criminal Appeal No.71/2017, the State has sought
for enhancement of the sentence imposed against accused
Nos.1 and 3 for the offences punishable under Sections
120-B, 326 read with Section 34 of IPC.
3. The summary of the case of the prosecution is
that PW-1 (CW-1) Rajkumar, son of Seetharama Acharya,
the complainant in the case, after closing his Jewellery
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C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
shop at Puttur, at about 9.30 p.m., on the date
07.04.2012, was returning to his home on a motorcycle
along with his father PW-2 (CW-2) Seetharama Acharya
and elder brother PW-3 (CW-3) Amrutesh. On the way,
the complainant received a telephone call by an unknown
person, who told him that he has got an urgent work of
polishing of golden ornament to be got done by them and
he requested to wait there. Considering the urgency
shown by him, the complainant, his father and brother,
who were at that time near Venkateshwara Saw Mill,
Sampya, waited for the caller. Within a short time, an
autorickshaw with two persons therein, including the
driver, came to the said place. The persons in the
autorickshaw got identified with the complainant, his
father and brother as they are the persons to whom they
had made a call. Then they opened a bottle which was
brought by them and spilled the liquid from the said bottle
on the face of PW-3 Amrutesh. Raising hue and cry,
Amrutesh ran away from the said place and shouted at the
complainant and his father also to run away from the
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place. However, the driver of the autorickshaw threw acid
on the complainant and his father also. The assailants left
the place. Thereafter, the complainant, his father and his
brother were admitted to Adarsha Hospital at Puttur.
Accordingly, a complaint came to be lodged and FIR was
registered in Crime No.40/2012 of the complainant-Police
Station for the offences punishable under Sections 324,
307 read with Section 34 of IPC against unknown persons.
After conducting the investigation, the police filed charge
sheet against three accused, including the appellants in
Criminal Appeal No.1154/2016 and Criminal Appeal
No.1644/2016 for the offences punishable under
Sections 326, 307, 120-B read with Section 34 of IPC.
4. After perusing the materials placed before it and
hearing both side, the Sessions Judge's Court framed the
charges against the accused for the offences punishable
under Sections 120-B, 307, 326 read with Section 34 of
IPC. Since the accused pleaded not guilty, the trial was
held, wherein, the prosecution got examined in all
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C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
thirtythree witnesses as PW-1 to PW-33, got produced
and marked documents from Exs.P-1 to P-40(a) and got
produced Material Objects from MO-1 to MO-18. From the
accused's side, no witness were examined, however, two
documents were got marked i.e., photo of the scene of
occurrence as Ex.D-1 and a portion of Ex.P-39 - CDR as
Ex.D-2.
5. After hearing both side, the learned Sessions
Judge's Court by its impugned judgment of acquittal
passed in S.C.No.90/2012, dated 28.04.2016, acquitted
accused No.2 of the offences punishable under Sections
120-B, 326, 307 read with Section 34 of IPC and acquitted
accused Nos.1 and 3 of the offence punishable under
Section 307 of IPC. However, by the impugned judgment
of conviction dated 28.04.2016 and order on sentence
dated 30.04.2016, passed in Sessions Case No.90/2012,
convicted accused Nos.1 and 3 of the offences punishable
under Sections 120-B, 326 read with Section 34 of IPC,
and sentenced them to undergo rigorous imprisonment for
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C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
a period of four years and fifteen days each and to pay a
fine of `2,500/- each and in default of payment of fine,
to further undergo rigorous imprisonment for a period of
three months each for the offence punishable under
Section 120-B read with Section 34 of IPC and to undergo
rigorous imprisonment for a period of four years and
fifteen days each and accused No.1 to pay a fine of
`2,500/- and accused No.3 to pay a fine of `7,500/- and
in default of payment of fine, accused Nos.1 and 3 to
further undergo rigorous imprisonment for a period of
three months each for the offence punishable under
Section 326 read with Section 34 of IPC. As aforestated,
challenging the impugned judgment passed by the
Sessions Judge's Court, these appeals have been filed.
6. The State is being represented by the learned
High Court Government Pleader and accused Nos.1, 2,
and 3 are represented by their respective learned
counsels. The learned counsels from both side are
physically appearing in the Court.
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C/w. CRL.A No.1154 of 2016,
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7. The Sessions Judge's Court records were called
for and the same are placed before this Court.
8. Heard the arguments from both side. Perused
the materials placed before this Court, including the
memorandum of appeals, impugned judgment and the
Sessions Judge's Court records.
9. For the sake of convenience, the parties would be
henceforth referred to as per their rankings before the
learned Sessions Judge's Court.
10. Learned counsel for the appellant in Criminal
Appeal No.1154/2016, who is for accused No.1, in his
arguments submitted that there is no evidence to show
that there was availability of light in the place of offence,
as such, the identity of the accused is highly doubtful.
The sketch of the spot of offence does not show the
presence of any source of light in the spot. He further
submitted that Test Identification Parade (for short `TIP')
was not conducted in the matter, on the other hand, the
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C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
police had shown photos of accused to the witness.
Therefore, the identification of the accused is not
believable. He also submitted that the sale of sulphuric
acid to accused Nos.1 and 3 is not proved by the
prosecution. Therefore, it cannot be believed that accused
were in possession of the acid at the time of the incident.
He also stated that motive behind the alleged commission
of crime is not proved against the accused No.1. Since
accused No.2 is said to be the abettor and no abetment is
proved, the motive cannot be attributed to the accused
No.1. With this, he submitted that the impugned
judgment of conviction of accused No.1 deserves to be set
aside by allowing the appeal.
11. Learned counsel for the appellant in Criminal
Appeal No.1644/2016, who is for accused No.3, in his
argument contended that in view of non-conduction of the
TIP, the identity of the accused is highly doubtful. The
availability of light in the place of offence is also not
proved, as such, the identity of the accused becomes more
doubtful. The prosecution has failed to prove the alleged
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C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
conspiracy between the accused. Consequently, the
alleged motive behind the alleged commission of
crime is also not proved. He further submitted that
there is an inordinate delay in recording the statement
of PW-16, as such, his evidence is not reliable. With
this, he submitted that, however the Sessions Judge's
Court without appreciating the evidence led before it
in its proper perspective, has convicted the accused,
as such, the same deserves to be set aside and
accused No.3 deserves to be acquitted as
prayed for.
12. Learned High Court Government Pleader for the
appellant in Criminal Appeal No.70/2017 and Criminal
Appeal No.71/2017, who is also for the respondent-State
in the remaining two appeals, in his argument submitted
that the incident of PW-1 to PW-3 sustaining burn injuries
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C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
in the acid throw incident is not in dispute. The evidence
of the prosecution witnesses show that all the three
accused had conspired to commit the alleged crime. The
said conspiracy had a motive behind it, which is an
allegation made by the family of the complainant against
accused No.2 about missing of their motor vehicle Jeep.
Further, the accused No.2 who was in close terms with
younger brother of PW-1 does not wanted the marriage of
PW-5 with others as she was interested in him. This made
her to conspire with accused Nos.1 and 3 to throw acid
upon PW-1 to PW-3 and to attempt to cause their death.
However, after hearing his arguments for some time,
the Court directed him to file his written arguments, as
such, learned High Court Government Pleader has filed
written arguments in this matter, which except narrating
the case of the prosecution, has not stated as to how the
prosecution has proved the charges levelled against the
accused. The written arguments state that the evidence
of PW-16 proves the conspiracy among the accused. The
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C/w. CRL.A No.1154 of 2016,
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CRL.A.No.71 of 2017
evidence of PW-3, PW-4 and PW-5 speaks about the
phone call that was being made by accused No.2 to the
family of the complainant and her suspected involvement
in the theft of jeep, which made accused No.2 to become
angry and resulted in the motive of committing the crime
with the help of accused No.1 and accused No.3.
13. It was also stated in the written argument that
there was availability of light on the Sign-Board of
Venkateshwara Saw Mill, near which place, the offence has
taken place. As such, PW-1 to PW-3 have identified the
accused Nos.1 and 3 who threw the acid upon them.
Further, the evidence of the Investigating Officer proves
the fact of accused Nos.1 and 3 purchasing the acid
through its seller. The medical evidence also corroborates
the prosecution case of PW-1, PW-2 and PW-3 sustaining
multiple grievous injuries caused by acid burns.
However, the Sessions Judge's Court did not properly
appreciate the evidence led by the prosecution in its
proper perspective which resulted it in acquitting accused
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C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
No.2 from the alleged offences and imposing less than the
minimum sentence upon convicted accused Nos.1 and 3.
With this, the State has prayed for dismissing the appeal
filed by accused Nos.1 and 3 and allowing other two
appeals filed by it.
14. After hearing the learned counsels from both
side, the points that arise for our consideration in this
appeal are:
1) Whether the prosecution has proved beyond
reasonable doubt that accused No.1, accused No.2
and accused No.3 assembled on the date
03.04.2012, at Bannuru of Puttur, near Hariprasad
Hotel, situated at Bolwar of Puttur and in an
autorickshaw bearing registration No.KA-21-7621
belonging to accused No.1 and also at other places of
Puttur, and hatched a criminal conspiracy of throwing
acid upon the complainant and his family members
and to murder them and thereby have committed an
offence punishable under Section 120-B read with
Section 34 of IPC?
2) Whether the prosecution has proved
beyond reasonable doubt that on the date
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C/w. CRL.A No.1154 of 2016,
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07.04.2012, at about 10.00 p.m., the accused No.1
and accused No.3 in pursuance to the criminal
conspiracy which they hatched along with accused
No.2 and in furtherance of their common intention,
approached PW-1 (CW-1) Rajakumar, PW-2 (CW-2)
Seetharama Acharya and PW-3 (CW-3) Amrutesh,
near Sri Venkateshwara Saw Mill at Sampya of
Arayapa Village, Puttur Taluk, who were going to
their house on a motorcycle and threw acid on the
face and other parts of the body of PW-1, PW-2 and
PW-3 with an intention and knowledge to kill them
knowing that in case their act would result in death
of any of PW-1, PW-2 and PW-3, they (accused)
would be guilty of causing murder and in the
process, caused grievous burnt injuries to PW-1,
PW-2 and PW-3 and thereby have committed an
offence punishable under Section 307 read with
Section 34 of IPC?
3) Whether the prosecution has proved beyond
reasonable doubt that on the date, time and place
mentioned at point No.2 above, accused No.1 in
furtherance of their common intention i.e., of
accused No.1, accused No.2 and accused No.3,
voluntarily caused grievous injury to PW-1, PW-2 and
PW-3 by throwing acid on them and thereby has
committed an offence punishable under Section 326
read with Section 34 of IPC?
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4) Whether the impugned judgment warrants
interference at the hands of this Court?
15. Before proceeding further in analysing the
evidence led in the matter, it is to be borne in mind that,
among the present four appeals, Criminal Appeal
No.70/2017 is against the judgment of acquittal of
accused No.2 from the alleged offences. Even though
accused Nos.1 and 3, who are the appellants in Criminal
Appeal No.1154/2016 and Criminal Appeal No.1644/2016
have been convicted for the offences punishable under
Sections 120-B, 326 read with Section 34 of IPC, but, it is
the fact that accused Nos.1 and 3 are not convicted for the
offence punishable under Section 307 of IPC. As such, the
accused Nos.1 to 3 have primarily the double benefit of
their innocence of the offence punishable under Section
307 of IPC. Added to that, accused No.2 also has got the
benefit of double presumption from the other offences i.e.,
Sections 120-B, 326 read with Section 34 of IPC. Firstly,
the presumption under law that, unless their guilt is
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CRL.A.No.71 of 2017
proved, the accused has to be treated as innocent in the
alleged crime. Secondly, as observed above, accused
No.2, from all the alleged offences, and accused Nos.1
and 3, from the alleged offence punishable under
Section 307 of IPC, are 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
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unless he is proved guilty by a competent court of
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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" 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 and also in Roopwanti -vs- State of Haryana
and others, reported in AIR 2023 SC 1199.
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.
- 23 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
16. In order to prove the alleged guilt against the
accused, the prosecution got examined thirtythree
witnesses from PW-1 to PW-33, however, it has attempted
to prove the alleged conspiracy among the accused mainly
through PW-16 along with alleged supportive evidence of
other witnesses, more particularly, from PW-1 to PW-5.
However, in the light of the evidence led by the
prosecution, the evidence regarding the alleged
occurrence of the incident of acid throw, as well the
alleged conspiracy may have to be taken together from
the evidence of prosecution witnesses.
17. According to the prosecution, PW-1 (CW-1)
Rajakumar, PW-3 (CW-3) Amrutesh and PW-5 (CW-5)
Ashok are the children of PW-2 (CW-2) Sri Seetharama
Acharya and PW-4 (CW-4) Smt.Sharada. The evidence of
PW-1 to PW-5 regarding their relationship inter se is not
denied from the accused side. Similarly, the case of the
prosecution that PW-1 at the time of incident was running
a Jewellary shop by name Mathrushree Jewellers in front
- 24 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
of Bhuvanedra Kala Mandir on Railway Station Road at
Puttur and that his brother PW-3 (CW-3) Amrutesh was
also assisting his younger brother, who is PW-1, in his
business at Mathrushree Jewellers and later on, PW-3
opened another similar shop with the same name in a
nearby place called Sullia and also PW-2 (CW-2)
Sri Seetharama Acharya, the father of PW-1, PW-3 and
PW-5 and husband of PW-4, was doing fruits and coconut
business near Sri Mahalingeshwara Temple at Puttur, has
come out in the evidence of PW-1, PW-2, PW-3, PW-4 and
PW-5, the same has not been specifically denied from the
accused side. As such, the relationship of PW-1 to PW-5
inter se and the avocation of PW-1, PW-2 and PW-3 and
the place of their business as Goldsmiths and Jewellers,
as contended by the prosecution, has remained
undisputed.
18. The prosecution mainly relied upon the evidence
of PW-1 to PW-6 and PW-14 to prove the alleged incident
of act of acid throw upon PW-1 to PW-3 by accused Nos.1
and 3 and also with respect to the alleged conspiracy.
- 25 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
19. PW-1 (CW-1) Rajakumar in his evidence has
stated that, on the night of 07.04.2012, at about
9.00 p.m., after closing his shop Mathrushree Jewellers,
himself joined by his father - PW-2 (CW-2) Seetharama
Acharya and his brother PW-3 (CW-3) Amrutesh, were
returning home on a motorcycle. At about 9.00 p.m.,
while they were near Mukrampady Kammady Mill,
he received a call to his cell phone. The caller from the
other side after asking him where he was, told him that
a gold polishing work is to be attended urgently and that
he will come to the place where he is and requested him
to wait there. The witnesses accordingly were waiting
near the gate of Venkateshwara Saw Mill, which was after
Mukrampady. The caller who had called earlier, after ten
minutes called once again and confirmed that these people
were waiting near the gate of Venkateshwara Saw Mill.
At about 10.00 p.m., the driver of the autorickshaw and
another person sitting in the back seat, came there. The
witness says that these people approached them and
asked them as to whether they have brought the gold.
- 26 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
Stating that they have not brought the gold, those two
persons, who had come in an autorickshaw, talked
between themselves and after confirming that these
people are from Mathrushree Jewellers, they spoke about
the gold. Then, the person sitting in the back-seat of
autorickshaw showing CW-3 (PW-3) to the driver of the
autorickshaw, told that it was the same person. Then
the driver of the autorickshaw took out a bottle from
beneath his seat in the vehicle and opening its lid, threw
the liquid from the bottle upon CW-3. CW-3 shouted as
`run and escape' at him and his father. At the same
time, the driver of the autorickshaw threw some more
liquid from the bottle upon his (of this witness) face,
chest, neck and also on the face and hands of his father.
Due to throwing of that liquid, these people got their skin
burnt, so also, the shirt worn by them. These people
started yelling, at that time, seeing that some vehicles
were coming on the road from Sampya side, the driver of
the autorickshaw throwing the bottle to the side of the
road, drove his autorickshaw from the place.
- 27 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
PW-1 has further stated that the people who came
there, took these persons in a car to Adarsha Hospital at
Puttur. There, the doctor after giving them the first aid
treatment, got him and his father admitted as inpatient.
CW-3 was referred to K.M.C. Hospital, Mangaluru, for
higher treatment.
20. PW-1 further stated that they have seen the
culprits who threw acid upon them in the Sign-Board light
of the Venkateshwara Saw Mill, as well upon the light of
motorcycle upon which these people were going. Stating
that he can identify those persons, the witness has
identified accused Nos.1 and 3 in the Court and specifically
stated that accused No.3 Prashant was sitting in the driver
seat of the autorickshaw and it was he who threw liquid
upon them and the other accused is the accused No.1-
Mohan, who was sitting in the back-seat of the
autorickshaw.
21. PW-1 further stated that, earlier to the incident,
accused No.2 - Hemalatha was now and then talking to
- 28 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
CW-5 over the phone, for which, the family members of
this witness were objecting. A Jeep belonging to these
people was also stolen. In that connection, these people
had given a complaint in Puttur Town Police Station
against accused No.2. In that connection, police had
enquired accused No.2. Being angry with the same,
accused No.2 instigating accused Nos.1 and 3 and with an
intention to kill these people, had got thrown liquid upon
them inflicting serious injuries and thus, has attempted to
kill them. Stating so, the witness has identified accused
No.2 also in the Court.
22. Further stating that while he was taking
treatment in Adarsha Hospital, the police had recorded his
statement, the witness has identified the same at Ex.P-1
and his signature at Ex.P-1(a) there.
PW-1 has further stated that, on the next day, the
police visiting him in the hospital, have collected his shirt,
pant, banian and the shirt, pant and banian of his father
(CW-2) which were worn by them at the time of the
- 29 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
incident. Similarly, the shirt and banian worn by CW-3 at
the time of the incident and currency notes of the
denomination of `50/- in one piece, `200/- in one piece
and `500/- of thirteen pieces were also produced before
the police. The police in the presence of panchas, who
were the visitors to see these injured in the hospital,
seized those articles by drawing a panchanama. Stating
so, the witness has identified the clothes said to have been
worn by him at the time of the incident at MO-1 to 3 and
that of his father at MO-4 to MO-6 and a shirt of his
brother (PW-3) at MO-7. He also identified the pieces of
currency notes, which according to him, were with his
brother at the time of the incident and tore into pieces due
to throwing of the liquid at MO-8. He identified the
banian worn by his brother at the time of the incident at
MO-9. He specifically stated that MO-1 to MO-9 also got
burnt due to fall of liquid upon them. He has identified the
said seizure mahazar at Ex.P-2.
- 30 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
23. PW-1 has further stated that, on 09.04.2012, in
his presence, the police have drawn the scene of offence
panchanama and also in the presence of CW-7 and
CW-13, who were the panchas to the said panchanama.
It was him who has shown the place of the incident to the
police and panchas, which was in front of the gate of
Venkateshwara Saw Mill in Aryapu village in Puttur Taluk
on Sullia-Puttur road. The witness has stated that the
place where the liquid had fallen on the earth was got
dried, however, the broken glass bottle pieces were there
and he has shown them to the police. The police seized
those pieces of broken glass bottle. The witness has
identified the said seizure panchanama at Ex.P-3 and
stating that the police also drew sketch at the spot,
has identified the same at Ex.P-4 and the pieces of broken
glass bottle said to have been seized under the
panchanama at MO-10.
24. PW-1 further stated that the police had enquired
him seven to eight months thereafter when he gave them
- 31 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
a Compact Disc (for short `CD') stating that the same
CD contains the telephonic conversation between accused
No.2 and his (of this witness) mother, in which telephonic
conversation, accused No.2 had threatened his mother.
He stated that after fixing the caller ID and getting the call
deviated to mobile and recording the said conversation in
the mobile phone, they have got the CD prepared. The
said conversation was recorded in the cell phone of PW-5.
Stating that the police have seized the said CD by drawing
a panchanama, the witness has identified the said
panchanama at Ex.P-5 and CD at MO-11. Further stating
that similarly the conversation recorded through the phone
of his elder brother is also recorded in a Compact Disc, the
witness has identified the said CD at MO-12.
The witness has identified his photo stating that the
same was taken by them in their camera and got them
marked as Exs.P-6 and P-7. Similarly, he identified his
father's photograph at Exs.P-8 and P-9 and his brother
PW-3's photograph at Exs.P-10 and P-11. The witness in
- 32 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
his further examination-in-chief has identified and got
marked the autorickshaw at MO-13.
25. PW-1 was subjected to a detailed cross-
examination from the accused side on different dates of
trial. In the said cross-examination from accused No.2
side, the witness gave more details about his and his
family members acquaintance with accused No.2 and
about his business. Several suggestions made against him
and his brothers that they do not behave properly with
lady customers who visit their shop were denied by this
witness. He admitted a suggestion as true that, since
prior to he establishing his shop, accused No.2 and CW-5
were known to each other. He expressed his ignorance to
the suggestion that CW-5 was visiting the house of
accused No.2. However, he admitted that accused No.2
has got three children, among whom, two are adolescent
girls. He admitted that CW-5 was a Medical
Representative and that accused No.2 and CW-5 came to
- 33 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
know each other in his shop. He expressed his ignorance
about CW-5 being in constant touch with accused No.2.
26. The witness has further stated that his elder
brother i.e., CW-3 was not the registered owner of any
motor vehicle Jeep. However, the witness stated that, it
was his mother who was the registered owner of the Jeep.
He denied that a false complaint was made against
Hemalatha (accused No.2) about theft of the Jeep. He
denied a suggestion that himself, joined by his family
members, were wanted to implicate accused No.2 in some
scandal, as such, he has made a false allegation that
accused No.2 had an affair with CW-5.
27. PW-1 was further cross-examined in detail from
the side of accused No.1, wherein he gave some more
details about the alleged incident on the night of
07.04.2012. He reiterated that phone number from which
he received the call was unknown to him and that he told
about his location to the caller. He reiterated the details of
the incident as stated by him in his examination-in-chief.
- 34 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
He also stated that after the accused, who came in an
autorickshaw, threw the liquid upon his elder brother
(CW-3), he ran towards Sampya for about 50 to 60
meters. He felt severe burning sensation and burns the
moment liquid was thrown upon him, however, none from
inside the Saw Mill or neighbours came there. It was
some passerby who were going on the road shifted them
to the hospital. He reiterated that there was light in the
place of the offence and he has stated about the same to
the police also.
In the cross-examination of PW-1 from the side of
accused No.1, some attempts were made to show that
there was some improvement in the evidence of PW-1,
however, the witness has not admitted the same. He did
not admit the denial suggestions made to him. However,
he admitted the suggestion that, in order to polish the
gold, they use acid and it also causes burns if it comes in
contact with skin and it would burn clothes also.
He denied a suggestion that while working in their
Jewellery shop, accidentally the acid has fallen upon them.
- 35 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
He stated that the police had shown them the
photographs of the persons who had thrown liquid upon
them.
In his brief cross-examination from accused No.3
side, PW-1 gave the details about which accused threw
liquid upon them. The accused No.3 adopted the cross-
examination made from accused No.1 side.
On a subsequent date, in his cross-examination,
PW-1 clarified that though he has identified the CDs at
MO-11 and MO-12, however, the very original CD's which
he had produced have been marked as MO-17 and MO-18
in the evidence of PW-30 and MO-17 and MO-18 are the
CDs produced by him, which bears his signature on the
slip attached upon them.
The witness was not cross-examined from the
accused side on this aspect.
28. PW-2 (CW-2) Seetharam Acharya has reiterated
about the incident what his son PW-1 has stated. He also
stated that, on the night of 07.04.2012, while himself,
accompanied with his two sons PW-1 and CW-3 were
- 36 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
returning home, PW-1 got a telephone call from an
unidentified caller and at his request, they were waiting
for them near Mukrampady Venkateshwara Saw Mill gate
as the caller had shown some urgency to meet them.
About accused Nos.1 and 3 coming to these people where
they were waiting near the gate of Venkateshwara Saw
Mill and among them, accused No.1 throwing liquid upon
CW-3 and CW-3 while alarming this witness and CW-1 to
run from the place and all these three persons sustaining
burns due to throwing of liquid upon them and thereafter,
the people moving on the road shifting them to Adarsha
Hospital at Puttur and CW-3 thereafter being referred to
higher hospital at Mangaluru for treatment, were all stated
by this witness on the similar lines as that of PW-1. This
witness has also identified accused No.3 as Prashant, the
driver of the autorickshaw, who threw liquid upon them
and the accused No.1 as Mohan Hegde as the one who
came along with accused No.3 by seating in the back-seat
of the autorickshaw and participating in the incident.
- 37 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
29. About the motive behind the commission of crime
and alleged conspiracy, this witness in brief has reiterated
as to what PW-1 has stated in his evidence and stated that
since he and his family members objected for repeatedly
accused No.2 calling his son and being not happy with
this, they lodged a complaint against her about theft of
Jeep, the accused No.2 conspiring with accused Nos.1
and 3, has committed the said act. Stating so, he
identified accused No.2 also in the Court. This witness got
marked four photographs of the autorickshaw from
Exs.P-12 to P-15.
This witness was also cross-examined from the side
of all the three accused in a detailed manner, wherein he
adhered to his original version. On the other hand, he
gave more details about the presence of the light at the
place of the incident. He also made it clear that, though
the accused were unknown to them at the time of the
incident, however, he has explained their facial features
before the police. He stated that the rickshaw driver
- 38 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
(accused No.3) was wearing white colour dress at the time
of the incident.
30. PW-3 (CW-3) Amrutesh has stated that, on the
night of 07.04.2012, while going home along with his father
(PW-2) and brother (PW-1), it was him who was riding his
motorcycle and his father and brother were the pillion
riders in that motorcycle. About PW-1 receiving a phone
call from an unknown person requesting him to wait, so
that, those people could come and give gold for its urgent
polishing and accordingly, these people waited for the
caller near the gate of Venkateshwara Saw Mill, has been
reiterated by this witness in the same manner how PW-1
and PW-2 have stated in their evidence. Similarly, the
accused Nos.1 and 3 approaching them, coming in an
autorickshaw and among them, accused No.3, joined by
accused No.1, throwing liquid from the bottle, due to
which, he sustaining burns and alarming his father and
brother to run from the place, was reiterated by this
witness. He has stated that the accused had thrown the
- 39 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
acid not only upon him, but, also upon his brother and
father, as such, all the three of them have sustained burn
injuries. Thereafter, some persons shifted them to
Adarsha Hospital at Puttur, from where, he was referred to
K.M.C. Hospital at Mangaluru for higher treatment. The
witness has stated that, due to acid attack, his face has
become disfigured and he has substantially lost his vision
of the eyes. He has stated that, since there was Sign-
Board light of Venkateshwara Saw Mill, he has seen the
accused, whom, like PW-1 and PW-2, he also has
identified in the Court individually.
31. About accused No.2 also, this witness has
reiterated that, she was calling his another brother CW-5
and in order to avoid that, these people performed the
marriage of CW-5. He further stated that these people
have recorded the telephonic conversation of accused
No.2, wherein she had threatened his (of this witness)
mother. This witness reiterated that, because of the
above reason and since these people suspected her in the
- 40 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
incident of theft of their Jeep, accused No.2, through
accused Nos.1 and 3, got the acid thrown on them. This
witness also identified the articles from MO-1 to MO-9 and
the broken pieces of glass bottle at MO-10, the
photographs of PW-1, PW-2 and his photographs at
Exs.P-6 to P-11 and that of autorickshaw from Exs.P-12 to
P-15. He has identified the autorickshaw also physically at
MO-13.
In his cross-examination from the accused side, this
witness adhered to his original version. It was elicited in
his evidence that accused No.2 was known to him since
several years and that accused No.2 was in close
movements with CW-5 and CW-5 also was in close
movements with accused No.2 till his marriage. He denied
a suggestion that bringing pressure on CW-5, the
telephonic conversation of accused No.2 was recorded.
He denied a suggestion that, himself and CW-5 were
eyeing the daughters of accused No.2 and that in
connection with theft of Jeep, he had asked accused No.2
to send her daughter to CW-5. He denied that since she
- 41 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
did not oblige, a false case has been hoisted against her.
Thus, in his cross-examination, he did not give any scope
to the accused to weaken his evidence given in his
examination-in-chief.
32. PW-4 (CW-4) Smt.Sharada, the mother of PW-1,
PW-3 and PW-5 and wife of PW-2, has stated about the
incident in the similar manner as has been stated by
PW-2. However, admittedly her evidence regarding the
happening of the incident is on a hearsay since the witness
has collected the details about the incident from PWs.1 to
3 and that she was not an eye witness to the incident.
However, about the telephonic conversation between
accused No.2 and herself, this witness has stated that
accused No.2, who was acquainted with her children, had
called her to their house telephone No.283085 and stated
that she was in love with Ashok (CW-5) and that she is
going to marry him, as such, if these people finds a
different alliance to him, she would put an end to them.
This witness also spoken about the theft of Jeep belonging
- 42 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
to them and accused No.2 being suspected in the said
theft of the vehicle, in which connection also,
accused No.2 having angry with her husband and children.
Stating so, the witness stated that, it is in that connection,
accused No.2 got acid thrown on her husband and sons
and attempted to kill them by joining with other two
youths.
This witness was cross-examined only from accused
No.2 side, wherein suggestions made to her denying that
accused No.2 had any role in the incident, has been
denied by this witness. However, it is to be noticed that
the evidence of this witness about the occurrence of the
incident, where the husband and two sons of this witness
sustained burn injuries, has not been denied or disputed
from accused Nos.1 and 3 since they did not cross-
examine this witness.
33. PW-5 (CW-5) Ashok, elder brother of PW-1 and
younger brother of PW-3 and the son of PW-2 and PW-4
has stated that, at the time of the incident, he was
working as a Medical Representative at Mangaluru and
- 43 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
visiting his home twice a week. He came to know of
accused No.2 in the shop of his brother i.e., PW-1 where
she was visiting now and then. She having collected his
(of this witness) cell phone number from somebody was
calling him. One day, she met him in a street at Puttur
and stated to him that she was calling him. In due course,
she was receiving some money from him on the pretext of
school fee of her children and also got his suretyship to a
loan of `20,000/- raised by her from a Co-operative
Society. Some of the instalments due in that connection
have been paid by him. This witness has also stated that,
she was calling to their house landline number at 283085
and was telling to his mother that she is in love with him.
When enquired by his mother, he told his mother that
there is no such intimacy between them. Still, she was
attempting to call him over the phone and now and then
he used to get missed calls from her. The witness has
stated that when he had asked her not to call him over the
phone and talk, the accused No.2 had stated before him
that since it was his brother who had prevented him from
- 44 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
talking to her, she would see that acid is thrown upon him.
This witness has further stated that, in connection with the
theft of Jeep in a police complaint, the accused No.2 was
suspected. All these things had made her to commit the
present incident of throwing acid on PWs.1 to 3.
34. About the incident, the witness has stated that,
it was after coming to know about the incident through
his friend one Sri Ibrahim while he was at Mangaluru, he
went to K.M.C. Hospital on the same night and saw his
brother PW-3 under treatment for acid burns. He also
visited his father and brother i.e., PW-2 and PW-1 and
noticed that they too had sustained acid burns. He alleged
that it was accused No.2, as a revenge, had got the acid
thrown through accused Nos.1 and 3.
35. This witness has identified the autorickshaw and
a cell phone stating that he was present when these
articles were seized by the police. He also stated that
accused No.1 shown the spot of the offence in his
presence, where the police drew the scene of offence
- 45 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
panchanama as shown by the accused No.1 as per Ex.P-
18. He has identified the accused No.1 in the Court.
In his cross-examination, he adhered to his original
version and gave more details about his acquaintance
with accused No.2 and as to how the said acquaintance
was misused by her. He has also given the details about
recording of telephonic call made by accused No.2 to their
house. Thus, though this witness was subjected to a
detailed cross-examination from the accused side,
however, the evidence in his examination-in-chief could
not be shaken in his cross-examination.
36. PW-6 (CW-6) Sri Shrikant Shet, a Goldsmith by
profession, having his shop opposite to that of PW-1, in his
evidence has stated that on 07.04.2012, at about
9.30 p.m., while he was in his shop, a person approached
him asking about the telephone number of Mathrushree
Jewellers. Since the said youth shown some urgency to
contact the shop people of Mathrushree Jewellers, he
(this witness) at the request of that youth, called PW-1
- 46 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
over his (of this witness) cell phone and gave it to that
youth to talk. After talking to them, the youth as shown
by him got down the phone number shown on the shop of
PW-1 and left the place.
The witness further stated that, on the same night at
about 11.30 p.m., while he was at home, he received a
phone call from PW-1 stating about the incident.
Accordingly, on the next day morning, he went to Adarsha
Hospital at Puttur and saw the injured PW-1 and PW-2
who had sustained burn injuries on their body and clothes
were also burnt. The witness has stated that, it was in his
presence, the clothes of PW-1 to PW-3 and acid burn notes
were given to the police, who seized those articles by
drawing a seizure panchanama as per Ex.P-2. He has
identified those articles from MO-1 to MO-9. The witness
identified accused No.3 in the Court stating that it was the
accused who approached him on 07.04.2012, seeking the
telephone number of PW-1 and spoke to PW-1 over the
phone. This witness has further stated that, one week
thereafter, when he had been to the complainant-Police
- 47 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
station, the police had shown him accused No.1 and the
said accused had taken them (including this witness) to
the spot of the offence and shown them the place, which
was near Venkateshwara Saw Mill. The police drew a
panchanama as per ex.P-18 in his presence and obtained
his signature. The witness has identified the accused No.1
in the Court as the person who had shown the spot of the
offence.
In his cross-examination, he adhered to his original
version and has given more details about his knowledge
about the incident and he seeing accused No.3 at the first
instance and thereafter, accused No.1 in the Police
Station.
37. PW-14 (CW-8) Sri Sadashiva has stated that, on
the night of the incident at about 10.00 p.m., a person
coming from the direction of Venkateshwara Saw Mill,
asked for some water to him. He at his request got a pot
full of water from his house. When enquired, that person
stated that he is feeling irritation due to throw of acid on
his face. He poured the water on his face and requested
- 48 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
him (this witness) to take him to the hospital. Seeing that
his face was disfiguring and the clothes worn by him were
burnt due to acid and coming to know that he is one
Amrutesh of Perigere resident, he took him to Adarsha
Hospital at Puttur. In the said hospital, the father and
brother of Amrutesh were also there, who also had
sustained same burns. Leaving Amrutesh in the hospital,
the witness returned to home.
The witness has stated that, on the next day,
through newspaper, he came to know about the incident
that while those three persons were going on a
motorcycle, two persons coming in an autorickshaw, had
thrown acid upon them, as such, they sustained burns.
The witness has stated that while he was returning from
Adarsha Hospital, he saw a gathering of people near
Venkateshwara Saw Mill. After going home, he came back
near Venkateshwara Saw Mill and saw the broken glass
pieces lying on the floor. He identified those broken glass
pieces at MO-10.
- 49 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
In his cross-examination from accused No.1 side, he
has given more details about PW-3 approaching him and
he taking the injured PW-3 to Adarsha Hospital and
leaving him there. Accused No.3 adopted the very same
cross-examination made from accused No.1 side,
however, accused No.2 did not cross-examine this
witness.
38. PW-1, PW-2 and PW-3, who are the alleged
injured in the incident, have uniformly stated that, on the
night of 07.04.2012, at about 9.00 p.m., while they were
going to their house on a single motorcycle, they received
a telephone call from an unidentified person, who asked
them about the details of their location and requested
them to wait there since he had an urgent work of gold
polishing. According to these three witnesses, when they
were waiting, two persons came and among whom, one,
who was the autorickshaw driver, after getting identified
by the other person who had come and sitting in
passenger's seat in the autorickshaw, threw acid upon
PWs.1 to 3. All these three witnesses have identified
- 50 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
accused Nos.1 and 3 in the Court as the persons who had
thrown acid upon them causing severe burn injuries.
39. Learned counsels appearing for accused Nos.1
and 3 in their arguments vehemently submitted that
identification of accused Nos.1 and 3 is not believable
since admittedly, accused Nos.1 and 3 were strangers to
PWs.1 to 3 and according to PW-1, accused were shown to
him by the police in the Police Station, as such, he
identifying accused Nos.1 and 3 does not inspire any
confidence.
40. Admittedly, no Test Identification Parade has
been conducted in this matter. Our Hon'ble Apex Court in
Raja -vs- State by the Inspector of Police, reported in
2019 SCC OnLine SC 1591, was pleased to observe with
respect to Section 9 of the Evidence Act, 1872 and not
conducting the Test Identification Parade and the
evidentiary value of the witnesses that, there is no
provision in Cr.P.C. which obliges the Investigating Agency
to hold, or confers a right upon the accused to claim a TIP.
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
The evidence of TIP merely corroborates and strengthens
the oral testimony in the Court which alone is the primary
and substantive evidence as to identity. Substantive
evidence is the evidence of identification in the Court.
Failure to hold a test identification parade would not make
inadmissible the evidence of identification in the Court.
The main object of holding an identification parade during
the investigation stage is to test the memory of the
witnesses based upon first impression and also to enable
the prosecution to decide whether all or any of them could
be cited as eye witnesses of the crime. The Court can
take into account the fact that during investigation, the
photograph of the accused shown if any, to the witness
and he identifying that person as the one whom he saw at
the relevant time.
41. Thus, the above judgment makes it very clear
that conducting the test identification parade is not
obligatory on the part of the Investigating Agency. The
main object of holding an identification parade during
- 52 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
investigation stage is to test the memory of the witnesses
based upon the first impression and also enable the
prosecution to decide whether all or any of them could be
cited as eye witnesses of the crime. Since the
identification parade belongs to the stage of investigation,
there is no provision in the Criminal Procedure Code which
obliges an Investigating Agency to hold or confers a right
upon the accused to claim a Test Identification Parade.
Even in the absence of conducting Test Identification
Parade, if the prosecution witness identifies the accused in
the Court and the same inspires confidence in the Court to
believe his version after assessing the facts and
circumstances of the case, his evidence regarding
identification of the accused cannot be brushed aside
holding that Test Identification Parade was not conducted.
The substantive evidence is not what the witness identifies
in the Test Identification Parade, but, it is his evidence of
identification of the accused in the Court. Therefore, the
argument of learned counsels for the accused that non-
conducting of Test Identification Parade during
- 53 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
investigation is fatal to the case of the prosecution is not
acceptable.
42. No doubt, PW-1 in his cross-examination has
stated that the police had shown them the photographs of
the persons who poured liquid upon them and admitted a
suggestion that based upon the photos shown to them, he
has identified the accused in the Court, however, the very
same witness in the very same breadth has also stated
that, even prior to that, he has seen those persons who
threw acid upon them. Thus, he made it very clear that,
it is not for the first time, he is seeing the accused in the
Court or solely based upon the photos shown to him by
the police, on the other hand, he made it clear that
he has seen the accused at the time of commission of
crime. Therefore, his evidence does not give an
impression that it is only because of police showing him
the photographs of the accused, he is identifying them,
on the other hand, his voluntary statement made in his
cross-examination makes it clear that, even before police
- 54 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
showing him the photographs of the accused, he had seen
them in the spot of the offence when they threw liquid
(acid) upon him.
43. PW-2 who also has identified the accused in the
Court, has stated in his cross-examination that, to the
police he had given the details of identification description
of the accused as to how they used to be looked at.
Further, it was not elicited from this witness that either
the accused or their photographs were shown to him by
the police during investigation. Therefore, PW-2 who
could give the details of accused Nos.1 and 3 as to how
they use to look at etc., must have definitely seen the
accused more clearly, otherwise, he could not have given
the details of accused Nos.1 and 3 before the police as to
how they were looking like.
Further, the evidence of PW-1, PW-2 and PW-3 that
since prior to the incident, they were knowing accused
No.2, who used to visit their shop frequently shows that
- 55 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
she was a known person to them, as such, her identity by
PWs.1 to 3 and PW-5 cannot be suspected.
44. PW-3 also has identified the accused in the
Court. Like PW-1, he too has identified accused Nos.1
and 3 with description of their alleged overtact. Neither
PW-2 nor PW-3 have either admitted or stated that either
the accused physically or through their photographs were
shown to them by the police prior to their evidence in the
Court. Therefore, the identity of accused Nos.1, 2 and 3,
among whom, the identity of the accused Nos.1 and 3 as
the persons who approached PWs.1 to 3 and threw acid
upon them, cannot be suspected.
45. The evidence of PW-6 that it was accused No.3
who visited his shop enquiring the telephone number of
PW-1 and that at his request, he made a call to PW-1 from
his house and allowed accused No.3 to speak to him and
thereafter, as shown by him, accused No.3 copied down
the phone number written on the Board of the shop of
PW-1 and left the place, corroborates the evidence of
- 56 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
PW-1 that accused No.3 called him over the phone at the
same time when PW-6 is said to have made the call to
PW-1 and allowed accused No.3 to speak to him. The
evidence of PW-1 also gets corroborated by the evidence
of PW-6 that accused No.3 noted down the telephone
number of PW-1 shown on the Board of their shop before
leaving.
46. Thus, it is established that accused Nos.1 and 3
have contacted PW-1 while PWs-1 to 3 were returning to
their home on the night of 07.04.2012. The identification
of accused No.3 by PW-6 in the Court further makes the
evidence of PW-6 believable that accused No.3 had visited
his shop on the night of 07.04.2012 before said accused
No.3 along with accused No.1 making a call to PW-1 and
approaching him in an autorickshaw. Thus, PW-6 who has
seen accused No.3 in his shop where there would be
obviously light, has also identified accused No.3 in the
Court.
- 57 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
47. It was also the contention of the learned
counsels for accused Nos.1 and 3 that there was no
sufficient light in the place of the offence, as such, PWs.1
to 3 could not have identified the accused at the time of
the incident.
PWs.1 to 3 in their evidence have stated that they
have seen the accused in the light of the Sign-Board of
Venkateshwara Saw Mill since the incident has taken place
near the gate of Venkateshwara Saw Mill. PW-1 has also
stated that there was also the light of the motorcycle,
upon which they were returning to home at the time of the
incident. Several attempts were made in the cross-
examination of PWs.1 to 3 to shaken their evidence about
the availability of light to identify the accused, however,
all these three witnesses have strongly adhered to their
version about the availability of light in the spot which was
sufficient for them to identify the accused. On the other
hand, a question was put to PW-2 in his cross-examination
from the accused side asking the witness as to the light
put on the Board of Venkateshwara Saw Mill was to enable
- 58 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
the Board to be seen, the witness in answer, apart from
admitting the said suggestion as true, has also stated that
the said light can be seen outside also. Thus, by putting
the said question in the form of suggestion, the accused
have admitted the presence of light put on the Board of
Venkateshwara Saw Mill.
48. In the very same cross-examination of PW-2,
it was also elicited about the details as to the location of
the said light and the Board in the gate of Venkateshwara
Saw Mill. The witness has stated that the said light was
about 3 ft. above the Board. The said Board was at a
height of 10 ft. from the ground and 3 to 4 ft. from the
gate. On the said day, the autorickshaw in which the
accused came, had come and stopped in front of the said
gate. Therefore, the witness made it very clear that the
place of incident and the light put to the Board of the Mill
were so close that the light put above the Board was
sufficient enough to make the place of the incident and the
- 59 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
persons involved in the incident visible and sufficient to
enable the parties in the incident to identify each other.
49. PW-5 and PW-6 are also the panchas to the
scene of offence panchanama said to have been shown by
accused No.1. The said panchanama is marked at
Ex.P-18. PW-5 in his cross-examination at Page-14
though has stated that in the said scene of offence
panchanama, there is no mentioning about the presence
of the light to the Board of Venkateshwara Saw Mill and
that he did not inform the Investigating Officer to mention
about the same, however, he specifically denied a
suggestion that there was neither street-light nor light of
Venkateshwara Saw Mill in the spot.
50. Even PW-3 who has given the detailed account
about the presence of the light in the spot of the offence,
in his cross-examination has stated that the said light
which was put to the Board of Venkateshwara Saw Mill
was not just a light put only to show the Board, but, from
the said light, even the road was also visible. He has
- 60 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
stated that the said light put to the Sign-Board was inside,
above and below the said Board. The description of the
height of the Board and height above the lamp given by
this witness corresponds with the description given by
PW-1 about not only the availability of the light, but, also
its location. Thus, the argument of learned counsels for
the accused that availability of light at the time of the
incident and in the place of the incident is highly doubtful,
is not acceptable.
51. According to PW-1, PW-2 and PW-3, the accused,
more particularly, accused No.3 caused burn injuries upon
them. Even PW-14 in his evidence has stated that when
PW-3 approaching him, asked for some water, told to
PW-14 at his enquiry that the culprits had thrown acid
upon his face. The witness has also stated that he noticed
the face of PW-3 becoming disfiguered and ugly after
PW-3 poured water on his face. The witness has also
stated that the clothes worn by him had acid burns. It is
thereafter, he took him at his request to Adarsha Hospital
- 61 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
in his vehicle. Thus, PW-14 who is an independent
witness, also has stated that immediately after the
incident, he has seen PW-3 with severe acid burns on him.
52. In order to show that accused Nos.1 and 3 had
purchased the acid before approaching PWs.1, 2 and 3,
the prosecution examined PW-15 (CW-11) Devadas and
PW-18 (CW-15) Harish. According to the prosecution,
PW-15 was a worker in a Battery shop who had sold
sulphuric acid to accused No.1. PW-18 was said to be the
owner of the Battery shop and who is also said to be a
pancha to the mahazar of his shop drawn at the instance
of accused No.1. However, both these witnesses have not
supported the case of the prosecution.
Though PW-15 stated that he works in a shop called
Ganesh Auto Electricals at Puttur and CW-15 (PW-18)
Harish is the owner of the said shop and that he does the
job of reconditioning and recharge of the batteries of the
vehicles, however, he stated that he had not seen
accused No.1 and the said accused No.1 had not
- 62 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
approached him for the purchase of acid. Though he
admitted his signature on Ex.P-25, which according to the
prosecution, was the mahazar of shop of CW-15 said to
have been shown by accused No.1, however, the witness
stated that he does not know what was written in the said
panchanama. Still this witness stated that through the
news paper report, he came to know that somebody had
thrown acid upon the goldsmiths.
In his cross-examination from the prosecution side,
he admitted that for battery works, they require sulphuric
acid and there can be a stock of 20 liters of sulphuric acid,
without which acid, they cannot do their work, however,
he stated that they get diluted acid. He also stated that
on 17.04.2012, there was a holiday for his shop.
In his cross-examination from the accused side, he
stated that the diluted sulphuric acid would not cause
burns and wound not burn the clothes.
- 63 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
53. CW-16 (PW-21) Sri Chetan also has stated in his
evidence that, he too has been working in the shop of
Ganesh Auto Electricals at the relevant point of time as a
colleague of PW-15. They were undertaking battery
reconditioning and recharge work. However, this witness
expressed his ignorance about accused No.1 visiting their
shop and purchasing the acid stating that the same is
required to his autorickshaw. Thus, he did not deny that
accused No.1 had not visited his shop, but, only pleaded
his ignorance. Though he identified the scene of offence
panchanama said to have been drawn at the instance of
the accused No.1 as per Ex.P-25, however, he stated that,
he does not know as to what is written in that document.
Even after treating him as hostile, the prosecution
could not get any support from him.
54. Even PW-18 (CW-15) Harish, owner of Ganesh
Auto Electricals, also in his evidence has not supported the
case of the prosecution. He stated that he is running
Ganesh Auto Electricals at Majalpadu in Puttur, where they
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
recharge vehicle batteries and auto-electricial batteries.
However, he stated that, he does not know accused No.1
and that the said accused had not come to his shop for
purchase of the acid. He only stated that he does not
know whether he has stated before the police that accused
No.1 had purchased acid from his shop. Though he
identified his signature at Ex.P-25, but, stated that he
does not know what was written in it. This witness also
stated that it is through news paper he came to know that
PW-1 to PW-3 were attacked with acid.
After treating him as hostile, the prosecution cross-
examined this witness, however, this witness, like PW-15,
maintained his alleged innocence about accused No.1
purchasing acid from his shop.
55. Thus, from the evidence of PW-15 and PW-18,
the prosecution could not get any support to the effect
that the accused had purchased acid from their shop.
However, when PWs.1 to 3 have specifically stated that
they sustained burns due to acid throw and it is accused
- 65 -
CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
Nos.1 and 3 alone have done it and PW-14 also has stated
that PW-3 had sustained acid burns when he responded
to the request of PW-3 for some help, then, it cannot be
disbelieved the evidence of PWs.1 to 3 that they had
sustained acid burns. The medical evidence of the doctor
would throw some light in that regard.
56. PW-8 (CW-19) Dr.S.R.Bhandary, a Senior
Specialist and Consultant at Adarsha Hospital, Puttur, has
stated that, on the night of 07.04.2012, at about
11.05 hours, he examined PW-1 who was brought with the
history of acid throw burns at 10.00 p.m. in Sampya.
He noticed superficial burns on his chest, right shoulder,
right side of the face, neck, right forearm, left arm and
skin was found charred. He stated that those injuries were
grievous in nature. Since it was acid that had fallen on
the face, it had disfiguered. In that regard, he had issued
a Wound Certificate, which this witness has identified at
Ex.P-19.
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
PW-8 has also stated that, on the same night at
10.30 p.m., he had examined PW-2, who also had come
with the history of acid throw burns on his face at about
10.00 p.m. in Sampya by some miscreants. When
examined him, he noticed that the injured had sustained
superficial burns on the chest, supra scapular region,
superficial burns on the forehead, superficial burns on the
right forearm on lateral aspect, superficial burns on the
right scapular region, right ear and on both sides of the
face and the skin was charred. Opining that those injuries
were grievous in nature, he has issued a Wound Certificate
to the Investigating Officer as per Ex.P-20.
This witness also stated that, if a person is thrown
with sulphuric acid on his face and other parts of the body,
the injuries mentioned in Exs.P-19 and P-20 are possible
to be caused. He also identified a letter issued by his
hospital to the Investigating Officer and dated 07.04.2012,
wherein it is stated that, on the same night, Rajakumar
(PW-1) and Seetharama (PW-2) were brought to their
hospital with the history of acid spray by unknown
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
persons at around 10.00 p.m. near Sampya on the same
day.
In his cross-examination, PW-8 adhered to his
original version that he had examined and treated PWs.1
and 2 and both of them had sustained burn injuries due to
acid throw upon them.
57. PW-27 (CW-36) Dr.M.K.Prasad, a Surgeon at
Adarsha Hospital, Puttur, has stated that, on 07.04.2012,
at 11.05 p.m., he has examined PW-3 who was brought to
his hospital with the history of attack with acid. When he
examined the injured, he noticed the following injuries,
which are,
(i) acid scalds on the upper and lower eyelids
of both eyes,
(ii) scalds over the face, nose measuring 5 cm
x 1 cm were found, and
(iii) scalds over the chest with the scattered
size of 2 cm x 1 cm was found.
The witness stated that all those injuries were
grievous in nature. He further stated that, if a person is
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
thrown with strong sulphuric acid, the injuries found on
PW-3 are possible to be occurred. Stating so, the witness
has stated that he advised the injured Amrutesh (PW-3)
to be taken to A.J.Hospital, Mangaluru for higher
treatment. Stating so, the witness has identified the
Wound Certificate said to have been issued by him and got
it marked at Ex.P-34. He also stated that, later on, he
received a medical report from A.J.Hospital, Mangaluru,
with respect to the injured, according to which, there was
blood clot in the eyes of PW-3.
Though this witness in his cross-examination has
stated that after giving the A.J.Hospital report to him,
since the police requested him to give the Wound
Certificate as per Ex.P-34, he has given the same, by that
itself, it cannot be inferred that he had not examined PW-3
and noticed the injuries as mentioned in Ex.P-34 upon
him.
58. PW-9 (CW-20) Dr.Sumana Kamat, Professor and
Head of the Department at K.M.C. Hospital, Mangaluru,
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
has stated that on 08.04.2012, in the midnight, at
1.25 hours, she has examined PW-3 who stated to her
that on the previous day i.e., on 07.04.2012 night at
about 9.30 p.m., while he was going on a motorcycle at
Samphy, some persons threw acid upon him. The witness
stated that, her colleague Dr.Srujan D'Souza [ i.e., PW-28
- (his name is shown as Dr.Sushan D'Souza in his
evidence)] had examined him. The witness has further
stated that PW-3 has stated that he cannot open his eyes
and his vision has blurred and eyes are paining and lot of
water is coming from the eyes. The witness stated that
when she examined the injured, she noticed the presence
of acid burns in the anterior segment of both eyes and on
both upper and lower eyelids and they were acid burns
with brownish in colour. She further stated that the visual
acuity had come down, the medial half of eyelashes were
absent in left eye lower eyelid, the epithelial defect
involving whole of cornea, except 1 mm superior rim, was
noticed and both eyelids and scalds were peeled off and
bubbles were found on the eyelids.
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
The witness has further stated that after admitting
him in the hospital, necessary treatments were given to
him and he was also advised to take treatment in the
Skin & Plastic Surgery Department. She stated that the
injured was an inpatient in their hospital from till
26.04.2012 and his left eye vision was lowered compared
to right eye and the skin on the eyes were peeled off and
he could not able to close the eyes properly. The witness
has further stated that, she has issued a discharge
summary, which she has identified at Ex.P-21. She
specifically stated that the injuries noticed on the injured
PW-3 are possible to be caused if acid is thrown upon that
person.
In her cross-examination, she adhered to her original
version and maintained that PW-3 had sustained burns
due to acid attack.
59. PW-28 (CW-34) Dr.Sushan D'Souza, Senior
Resident at K.M.C. Hospital, Mangaluru, has stated that on
08.04.2012, in the midnight at about 1.25 hours, she
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
examined PW-3 and in her finding in the medical
examination of the injured, she has given the very same
narration as given by PW-9, the Senior doctor. She has
further stated that the injured had sustained cornea
epithelial defect involving whole of cornea except 2 mm
superior rim (left eye denser than right eye), and noticed
that the anterior chamber faintly seen, normal depth pupil
hazily seen, reaction not made out and lens details are not
made out. She has reiterated what PW-9 has stated about
other observations made upon the patient regarding the
injuries. She too has stated that the injuries found on the
injured were grievous in nature. She also identified the
discharge summary issued by their hospital at Ex.P-21.
In her cross-examination, she adhered to her original
version and nothing could be elicited in her cross-
examination favouring the accused.
60. PW-29 (CW-35) Dr.Gaata M. Upadhya, has
stated that she has been working as a Dermatologist at
K.M.C. Hospital, Mangaluru. On 08.04.2012, in the
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morning at 9.00 a.m., she has examined PW-3, who was
admitted to their hospital with the history of acid attack
upon him. When she examined, she noticed the burn
injuries on his face, chest and both arms deep tissue was
exposed due to burning of the skin. In the places of
burns, the skin had become black showing that it was
burnt due to throw of liquid. After examining him, she
noted in the case sheet that due to chemical liquid, the
burns have occurred. She administered medicines to him
and later on found that he was recovering. She advised
the injured to consult the Plastic Surgeon and to undergo
plastic surgery. In that regard, she has maintained a case
sheet in the hospital, which she has identified at Ex.P-35.
The witness stated that, if a person is attacked with
sulphuric acid, the injuries found on PW-3 are possible
to occur and also stated that PW-3 had sustained
15% burn injuries.
In her brief cross-examination, she adhered to her
original version.
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61. PW-26 (CW-33) Dr.Veena P.s., an ENT Specialist
in Government Hospital, Puttur, has stated that, on
26.04.2012, she examined Sri Prashant (accused No.3)
and noticed the following injuries upon him :
(1) Burn wound measuring 7 x 5 cm in right
forearm 7 cm proximal to right wrist joint medial end
on the Supine aspect,
(2) 11 x 1 cm burn wound over right forearm
dorsum 14 cm proximal to right wrist joint,
(3) 2 x 2 cm burn wound over right arm 10 cm
proximal to right elbow joint,
(4) Multiple burn wound of 0.5 x 0.5 cm over
right arm and forearm,
(5) 3 x 3 cm burn wound over back 2 cm
lateral to tip of scapula right side,
(6) 0.5 x 0.5 cm burn wound, multiple over left
forearm,
(7) 4 x 2 cm burn wound over right thigh, 7 cm
proximal to right knee joint.
She opined that those injuries were simple in nature
and were superficial burn injuries and that their age was
about two to three weeks. She stated that those injuries
can be caused by acid spillage. Accordingly, she has
issued a Wound Certificate at Ex.P-33. She further stated
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that, if the accused spill acid to others, at that time, there
is chance of sustaining injuries as mentioned in Ex.P-33.
She has identified accused No.3 Prashant in the Court.
In her cross-examination she stated that, as asked
by the police, she has mentioned in Ex.P-33 that the said
injuries were acid burn injuries.
62. Thus, even the medical evidence of PW-8, PW-9,
PW-26, PW-27, PW-28 and PW-29 would further
corroborate the evidence of PWs.1 to 3 as the victims in
the incident, PW-4 and PW-5 as the family members of the
victims and PW-14, as a person who assisted the injured
PW-3 to go to hospital, that PWs.1, 2 and 3 had sustained
acid burns. None of these doctors have stated that those
acid burns can be self-inflicted, on the other hand, all
those doctors have stated that, if a person is thrown with
some acid, those injuries can occur. Added to these,
PW-26, who noticed some superficial burns upon accused
No.3, has stated that, a person while throwing acid upon
others, due to its spilling, can sustain those injuries.
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Though the said witness has stated that her determination
that it was acid burn injury was at the request of the
police, but, she opined that it was due to chemical liquid
spillage.
Thus, even in the absence of support by PW-15 and
PW-18, the medical evidence as discussed above, would
prove beyond doubt that PWs.1, 2 and 3 had sustained
acid burn injuries when they were said to have thrown
with acid. As such, the medical evidence also corroborates
the evidence of PWs.1, 2 and 3. The above evidence of the
injured corroborated by the evidence of PW-6, PW-14 and
the medical doctors would establish that it was accused
Nos.1 and 3 alone who had thrown acid upon PW-1, PW-2
and PW-3 and inflicted grievous injuries upon them on the
important part/organ of those injured, including eyes of
PW-3.
63. Regarding spot of the offence, it is PW-1, the
injured has stated that it was him who has shown the
place of the offence to the police, who drew a scene of
offence panchanama in his presence as per Ex.P-3.
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He also stated that, from the spot, the police took out
pieces of broken glass bottle, which this witness has
identified at MO-10. He has identified the sketch said to
have been drawn about the spot at Ex.P-4. The said
sketch, as well the panchanama at Ex.P-3 shows that the
incident has taken place in front of gate of Venkateshwara
Saw Mill at a distance of about 6 ft. from the gate. The
sketch also shows that the place was found spilled with
liquid. The said place was on the road leading from
Puttur to Sullia.
64. PW-7 (CW-7) Sri Ravindra Acharya has stated
that scene of offence panchanama as per Ex.P-3 was
drawn in his presence on 09.04.2012 and the spot was
shown by PW-1. Apart from identifying the panchanama
at Ex.P-3, the witness has also stated that, in the said
spot, broken glass bottle pieces were found, which were
also seized by the police, which were identified at MO-10.
The witness has identified the sketch at Ex.P-4 stating that
the police drew the same in the spot. Thus, the place
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of offence also stands established as in the front of gate of
Venkateshwara Saw Mill.
65. PWs.1, 2 and 3 have stated that in the incident,
apart from they sustaining burns, the clothes worn by
them also sustained acid burns at several places. PW-1
and PW-3 have identified those clothes which were seized
under a seizure panchanama at Ex.P-2 from MO-1 to
MO-7 and MO-9. Both these witnesses have identified the
clothes at MO-1 to MO-3 as were worn by PW-1, the
clothes at MO-4 to MO-6 as were worn by PW-2, and the
clothes at MO-7 and MO-9 as were worn by PW-3 and
also stated that the currency notes at MO-8 were in the
pocket of PW-3, which also got wet with the acid and cut
into pieces.
66. PW-32 (CW-24) Sri.U.B.Nandakumar, the
Investigating Officer has stated that he has drawn the
seizure panchanama as per Ex.P-2 and seized the clothes
of PWs.1 to 3 and acid smeared currency notes. He has
identified all these articles from MO-1 to MO-9. The same
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CRL.A.No.71 of 2017
witness has also stated about he drawing scene of offence
panchanama as per Ex.P-3 and seizing the broken glass
bottle pieces from the spot as per MO-10.
67. Thus, not only the spot of the offence and
drawing of scene of offence panchanama, but, also the
fact that in the acid attack, the clothes worn by PW-1,
PW-2 and PW-3 were got burnt, stands established.
Further, the evidence of PW-32 shows that he sent the
seized articles to Forensic Science Laboratory (FSL) for its
chemical examination.
68. The evidence of PW-24 (CW-25) Dr.Vani, the
Scientific Officer at Forensic Science Laboratory,
Bengaluru, shows that she has received the articles and a
request sent by the Investigating Officer for its chemical
examination and examined the articles, which included the
clothes with holes in its due to acid burns. After explaining
the physical appearance of those clothes, currency notes
and giving the details of the examination she conducted
and the procedure followed, she stated that all those articles
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revealed the presence of sulphuric acid in them. Noticing
the PH level of that acid, she concluded that it was a
strong acid. In that regard, she has issued a FSL Report
as per Ex.P-31. She has identified those articles from
MO-1 to MO-10 and MO-15.
Thus, the clothes worn by the injured, the currency
notes and the glass bottle pieces found in the spot were all
found to have the sulphuric acid contents in it and
corroborates the medical evidence, which in turn,
corroborates the evidence of PW-1 to PW-3 that they
were attacked with acid.
69. According to the prosecution, the accused Nos.1
and 3 approached PWs.1 to 3 in an autorickshaw bearing
registration No.KA-21-7612. PW-1 in his examination-in-
chief had stated that he could identify the autorickshaw
through its photograph, however, since due to objections,
the photographs were not marked as exhibits, later in his
further examination-in-chief, has identified the said
autorickshaw physically produced before the Court and got
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it marked at MO-13. Thus, he has identified the said
autorickshaw as the one in which the accused had
approached and thrown acid upon them. Later, PW-2 in
his evidence has identified the autorickshaw through its
photographs from Ex.P-12 to P-15. Even PW-3, one more
injured also has identified the autorickshaw which was
physically produced before the Court at MO-13.
70. Thus, the vehicle used by accused Nos.1 and 3 in
approaching PWs.1 to 3 also stands established. In the
said process, PW-5 (CW-5) has stated that the said
autorickshaw was produced by accused No.1 and the same
was seized in his presence. The said witness has identified
the autorickshaw at MO-13. PW-5 has also stated that
apart from the autorickshaw, at the instance of accused
No.1, the police seized a cell phone produced by accused
No.1 in his presence, which cell phone, he has identified at
MO-14.
71. PW-7 (CW-7) Ravindra Acharya in his evidence
has stated that he was the pancha for the seizure
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panchanama of the said autorickshaw and a cell phone
produced by accused No.1 and those two articles were
seized in his presence by drawing a panchanama as per
Ex.P-17. The witness apart from identifying the said
panchanama, has also identified the autorickshaw and a
cell phone at MO-13 and MO-14 respectively. The
evidence of PW-5 and PW-7 corroborates the evidence of
PW-32 - the Investigating Officer that accused No.1
produced the autorickshaw at MO-13 and cell phone at
MO-14 before him, which he seized by drawing a seizure
panchanama as per Ex.P-17.
These evidences stand established beyond
reasonable doubt that it was accused Nos.1 and 3 who
threw the acid upon PW.1, PW-2 and PW-3 causing
grievous injuries upon them.
72. It is the case of the prosecution that, the accused
No.2 had hatched a conspiracy with accused No.1 and
accused No.3 to throw acid upon PW-1 to PW-3 and to kill
them.
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73. Section 120A of the IPC defines 'criminal
conspiracy' as below:
"120A. Definition of criminal conspiracy.-
When two or more persons agree to do, or cause to
be done,-
(1) an illegal act, or
(2) an act which is not illegal by illegal
means, such an agreement is designated a
criminal conspiracy:
Provided that no agreement except an
agreement to commit an offence shall amount to a
criminal conspiracy unless some act besides the
agreement is done by one or more parties to such
agreement in pursuance thereof.
Explanation.- It is immaterial whether the
illegal act is the ultimate object of such agreement,
or is merely incidental to that object."
74. Learned counsel for accused No.1 in his
argument, relied upon a judgment dated 07-12-2021 of
the Hon'ble Apex Court in the case of PARVEEN @ SONU
Vs. The State of Haryana in Criminal Appeal
No.1571/2021, wherein in paragraph 12 of its judgment,
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the Hon'ble Apex Court with respect to Section 120B of
IPC was pleased to observe as below:
"12. It is fairly well settled, to prove the
charge of conspiracy, within the ambit of Section
120-B, it is necessary to establish that there was an
agreement between the parties for doing an
unlawful act. At the same time, it is to be noted
that it is difficult to establish conspiracy by direct
evidence at all, but at the same time, in absence of
any evidence to show meeting of minds between
the conspirators for the intended object of
committing an illegal act, it is not safe to hold a
person guilty for offences under Section 120-B of
IPC. A few bits here and a few bits there on which
prosecution relies, cannot be held to be adequate
for connecting the accused with the commission of
crime of criminal conspiracy....."
75. No doubt, in order to constitute a conspiracy,
meeting of minds of two or more persons to do an illegal
act or an act by illegal means, is a must. However, as
held by our Hon'ble Apex Court in the case of Bilal Hajar
Alias Abdul Hameed Vs. State represented by Inspector
of Police reported in (2019) 17 Supreme Court Cases
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451, it is not necessary that all the conspirators must
know each and every detail of the conspiracy which is
being hatched and nor is it necessary to prove their active
part/role in such meeting. In other words, their presence
and participation in such meeting alone is sufficient.
76. In a recent judgment in the case of DESH
DEEPAK KUMAR VIHANGAM ALIAS DEEPAK KUMAR Vs.
STATE OF BIHAR reported in 2022 SCC OnLine SC 326,
after considering its previous judgments on the point of
'criminal conspiracy', our Hon'ble Apex Court had an
occasion to analyse Section 120B - 'Punishment of criminal
conspiracy' under the IPC and to discuss the said position
of law with regard to the ingredients and the standard of
proof to be achieved by the prosecution for conviction
under Section 120B of the IPC in paragraphs 19, 20 and
21 of its judgment, which paragraphs are reproduced here
below:
"19. At this stage it is imperative to discuss the
settled position of law with regard to the ingredients
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and the standard of proof to be achieved by the
prosecution for conviction under Section 120-B IPC.
In Mohd. Khalid v. State of W.B. (2002) 7 SCC 334,
this Court had elucidated the elements of criminal
conspiracy which are reproduced as under: (SCC p.
351, para 17)
"17. ... The elements of a criminal conspiracy
have been stated to be: (a) an object to be
accomplished, (b) a plan or scheme
embodying means to accomplish that object,
(c) an agreement or understanding between
two or more of the accused persons whereby,
they become definitely committed to
cooperate for the accomplishment of the
object by the means embodied in the
agreement, or by any effectual means, and
(d) in the jurisdiction where the statute
required an overt act. The essence of a
criminal conspiracy is the unlawful
combination and ordinarily the offence is
complete when the combination is framed."
20. Elaborating upon the standard of proof the
prosecution has to meet in establishing criminal
conspiracy, this Court in State of Kerala v. P.
Sugathan (2000) 8 SCC 203 held as under: (SCC p.
211, para 12)
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"12. We are aware of the fact that direct
independent evidence of criminal conspiracy
is generally not available and its existence is
a matter of inference. The inferences are
normally deduced from acts of parties in
pursuance of a purpose in common between
the conspirators. This Court in V.C. Shukla v.
State (Delhi Admn.) (1980) 2 SCC 665 held
that to prove criminal conspiracy there must
be evidence direct or circumstantial to show
that there was an agreement between two or
more persons to commit an offence. There
must be a meeting of minds resulting in
ultimate decision taken by the conspirators
regarding the commission of an offence and
where the factum of conspiracy is sought to
be inferred from circumstances, the
prosecution has to show that the
circumstances give rise to a conclusive or
irresistible inference of an agreement
between two or more persons to commit an
offence. As in all other criminal offences, the
prosecution has to discharge its onus of
proving the case against the accused beyond
reasonable doubt. The circumstances in a
case, when taken together on their face
value, should indicate the meeting of the
minds between the conspirators for the
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intended object of committing an illegal act
or an act which is not illegal, by illegal
means. A few bits here and a few bits there
on which the prosecution relies cannot be
held to be adequate for connecting the
accused with the commission of the crime of
criminal conspiracy. It has to be shown that
all means adopted and illegal acts done were
in furtherance of the object of conspiracy
hatched. The circumstances relied on for the
purposes of drawing an inference should be
prior in time than the actual commission of
the offence in furtherance of the alleged
conspiracy."
21. This Court in CBI v. K. Narayana Rao (2012) 9
SCC 512 held: (SCC p.530, para 24):
"24. The ingredients of the offence of criminal
conspiracy are that there should be an
agreement between the persons who are
alleged to conspire and the said agreement
should be for doing of an illegal act or for
doing, by illegal means, an act which by itself
may not be illegal. In other words, the
essence of criminal conspiracy is an
agreement to do an illegal act and such an
agreement can be proved either by direct
evidence or by circumstantial evidence or by
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both and in a matter of common experience
that direct evidence to prove conspiracy is
rarely available. Accordingly, the
circumstances proved before and after the
occurrence have to be considered to decide
about the complicity of the accused. Even if
some acts are proved to have been
committed, it must be clear that they were so
committed in pursuance of an agreement
made between the accused persons who
were parties to the alleged conspiracy.
Inferences from such proved circumstances
regarding the guilt may be drawn only when
such circumstances are incapable of any
other reasonable explanation. In other words,
an offence of conspiracy cannot be deemed
to have been established on mere suspicion
and surmises or inference which are not
supported by cogent and acceptable
evidence."
77. It is keeping in mind the above principles laid
down by the Hon'ble Apex Court, the evidence regarding
the alleged conspiracy among accused No.1 to accused
No.3 in the instant case is required to be analysed.
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78. As analysed above, it has come in the evidence
of PW-1, PW-2, PW-3, PW-4 and PW-5 that, accused No.2
was a known person to their family and that she was
visiting the Shop of PW-1 quite often. It has also come in
the evidence of PW-5 that the accused No.2 was calling
him over phone and has also taken financial assistance
from him on the pretext of School Education expenses of
her children. It is also the evidence of PW-5 that, for a
loan of a sum of `20,000/- availed by her in a Multi-
purpose Co-operative Society, he stood as surety and had
also paid few instalments towards repayment of her loan
to the Society. Thus, it is clear that accused No.2 was a
known lady to the family of the injured persons.
79. PW-1, PW-2, PW-3, PW-4 and PW-5 in their
evidence have attributed the motive mainly to accused
No.2 for the commission of the crime. Though they have
given reasons to attribute motive upon her particularly
and at her alleged conspiracy with accused No.1 and
accused No.3, however, so far as the alleged conspiracy
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particularly of meeting of minds of accused No.1, accused
No.2 and accused No.3 and about they hatching any
conspiracy, to throw acid upon PW-1 to PW-3 and to kill
them, none of these witnesses have given any evidence
claiming their personal knowledge about the alleged
conspiracy by accused No.2. Thus, the evidence of PW-1
to PW-5 about the alleged conspiracy is only their
inference, imagination and presumption based upon the
acquaintance of accused No.2 with them and the alleged
behaviour of accused No.2 towards PW-5 under alleged
telephonic threat calls to PW-4. It is based upon the said
motive, these witnesses have attributed the presence of
conspiracy among accused No.1, accused No.2 and
accused No.3. Therefore, without corroboration by the
evidence of other witnesses or any documentary evidence,
it cannot be concluded from the oral evidence of PW-1 to
PW-5 alone that there was conspiracy among accused
No.1, accused No.2 and accused No.3.
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80. To fill that gap of requirement of corroboration
to the evidence of PW-1 to PW-5 regarding the alleged
conspiracy, the prosecution has mainly relied upon the
evidence of PW-16 (CW-26) - Sudhakar Acharya. This
witness in his examination-in-chief has stated that he also
works as a Goldsmith at Putturu and was visiting the
Shop of PW-1 and PW-3 at Putturu. Accused No.2 was
frequently visiting the Shop of PW-1 and talking more with
PW-1 and PW-3. Because of some exchange of words
between PW-3 and accused No.2, the said accused No.2
stopped visiting the Shop of PW-1 and PW-3. The witness
(PW-16) has stated that he has seen PW-5 and accused
No.2 talking with each other. After PW-3 lodged a
complaint about theft of his Jeep, suspecting accused
No.2 in the said incident, the accused No.2 was calling
over the landline telephone of the house of PW-5.
PW-16 has further stated in his evidence that, he
also knows accused No.1 and his Autorickshaw bearing
No.7612. He also stated that he has seen accused No.1
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and accused No.2 moving in the said Autorickshaw on the
road between Manjalpadpu to Bolwar. He has seen
accused No.1 and accused No.2 drinking juice at
Hariprasad Hotel. Two days prior to the date of the
incident (07-04-2012), he has seen both of them at
Putturu. Next day, after the incident of acid throw upon
PW-1, PW-2 and PW-3, i.e. on the date
08-04-2012, he has seen accused No.2 giving money to
accused No.1 outside Sri. Mahalingeshwara Temple at Putturu.
Accused No.2 from her hand was giving money to accused
No.1 on that day. It is thereafter he came to know that
accused No.1 and accused No.3 had thrown acid upon PW-1 to
PW-3.
Simultaneously, this witness has attributed
motive to the incident also stating that being
frustrated that PW-5 is marrying another girl and in
connection with she being suspected in the theft
of the Jeep, the accused No.2 got the acid thrown
upon PW-1 to PW-3 through accused No.1 and accused
No.3. Stating so, the witness has identified accused No.1 and
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accused No.2 in the Court so also the Autorickshaw at
MO-13.
This witness (PW-16) was subjected to a detailed
cross-examination from the accused's side where he has
given the details about his Shop and necessity for him to
visit the Shop of PW-1. He gave the details about he
visiting the injured PW-1 to PW-3 in the Hospital. Even in
his cross-examination, he reiterated that he has seen
accused No.2 and PW-5 loving each other, however, he
stated that he does not remember at which place, he has,
for the first time, seen both of them loving each other. He
stated that he has also seen them talking over the phone.
However, he added that the alleged love between the
accused No.2 and PW-5 was informed to him by PW-3
over phone. He admitted that he never met accused No.2
personally. The denial suggestions made to him in his
cross-examination were not admitted as true by the said
witness.
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81. Thus, the very alleged conspiracy by accused
No.2 with accused No.1 and accused No.3 is an off-shoot
of alleged motive, according to prosecution. Since
accused No.2 had a motive to take revenge against the
family of PW-1 to PW-5, she hatched a conspiracy and met
accused No.1 and accused No.3 to join her in the
conspiracy. As such, the alleged motive behind the
alleged commission of the crime is also required to be
looked into. It is once again PW-1, PW-3,
PW-4 and PW-5, who, according to the prosecution, have
spoken about the motive. Apart from them, according to
the prosecution, even PW-16 also has spoken about the
motive.
82. PW-1 in his evidence has stated that in
connection with the theft of their Jeep, they had lodged a
complaint against accused No.2 in Puttur Town Police
Station and the Police had enquired accused No.2 in that
regard. Being angry with the same, the accused No.2, by
telling accused No.1 and accused No.3 and with an
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
intention to kill these people (PW-1 and his family) has
got the liquid thrown upon them and attempted to cause
their death.
In the cross-examination of PW-1, by making
suggestions to PW-1 that in connection with the telephone
calls, his family had lodged a complaint against accused
No.2 and in that matter, the Police had enquired accused
No.2 and has troubled accused No.2, has admitted that at
the instance of the family of PW-1 to PW-5, the Police had
enquired accused No.2.
It was also suggested to PW-1 in his cross-
examination that, unnecessarily, a complaint alleging theft
of a Jeep was made against accused No.2 and the family
of the witness (PW-1) had an intention to cause trouble to
accused No.2, the accused No.2 has admitted that such a
complaint even with respect to the alleged theft of the
Jeep was filed against her from the family of the
complainant in this case.
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
Further, a suggestion made to PW-1 in his cross-
examination that, in the matter of Jeep, the Police had
summoned accused No.2 to their Police Station, which
suggestion was admitted by PW-1, establishes as a fact
that in connection with the alleged theft of the Jeep, a
Police complaint was filed in which accused No.2 was
summoned to the Police Station and enquired.
It was further elicited in the cross-examination of
PW-1 from the side of accused No.2 that, when accused
No.2 was summoned to the Police Station in connection
with the alleged theft of the Jeep, some exchange of
words took place between accused No.2 and CW-3, at
which time, CW-3 (PW-3 - Amrutesh) told accused No.2
'to send her daughter to his brother'. Though PW-1
expressed his ignorance about the said talks, however,
accused No.2 herself has admitted that in connection with
the alleged theft of the Jeep, she was summoned to the
Police Station and was enquired by the Police. Making use
of the same, in the very same cross-examination of PW-1,
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
accused No.2 also took a contention that taking the said
instance of alleged theft of the Jeep, PW-1 to PW-5 and
their family wanted to falsely implicate her in some
criminal case, however, PW-1 did not admit the said
suggestion as true.
83. By the above, accused No.2 herself has shown
that she was made to go to the Police Station and was
enquired by the Police at the instance of PW-1 and his
family in connection with the alleged theft of the Jeep.
84. PW-2 (CW-2) - Sri. Seetarama Acharya - the
father of PW-1 and PW-3 and PW-5 also has, in his
evidence, stated that since the accused No.2 was enquired
by the Police in connection with the theft of the Jeep about
which his son had given a complaint with the Puttur Town
Police, the accused No.2 making accused No.1 and
accused No.3 to join her, with an intention to kill these
people, has committed the present crime. However the
said evidence regarding the motive given by PW-2 has
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
been denied in his cross-examination from the accused's
side.
85. PW-3 (CW-3) - Sri. Amrutesh also in his
evidence has attributed the very same motive of alleged
theft of the Jeep and they lodging a complaint with the
Police suspecting accused No.2 in which, accused No.2
was enquired by the said Police as the motive for accused
No.2 to commit the present offences. In addition to that,
he also stated that since accused No.2 was calling PW-5
(CW-5) frequently, in order to avoid, they got married
PW-5 to some body else. Thereafter accused No.2 who
was frequently calling PW-5 over the phone and talking
with him started making telephonic calls to the home of
these witnesses and threatening the mother of PW-1,
PW-3 and PW-5 who is PW-4, however, PW-3 has not
specifically stated that it was also a motive for accused
No.2 to commit the offences.
86. PW-4 (CW-4) -Smt. Sharada, the mother of
PW-1, PW-3 and PW-5 has stated about accused No.2
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C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
telephoning to her to their land line telephone connection
at home with Telephone No.283085 and threatening her
(this witness) stating that Ashok (PW-5) being her
classmate, she will marry him, as such, in case if marriage
is fixed with any other girl, she would show an end to
them.
In that connection, PW-1, PW-3 and PW-5 have
stated about they recording the telephonic calls said to
have been made by accused No.2 to their house land line
and handing over the Compact Discs (CDs) of those
telephone conversations to the Investigating Officer, which
the witnesses have identified them at MO-11 and MO-12
and later on two other Compact Discs (CDs) at
MO-17 and MO-18 said to be containing the telephonic
conversation between accused No.2 and the inmates of
the house of the complainant.
87. PW-31 (CW-32) - Sri. Jagadeesh Reddy C.R., in
his evidence has stated that, on the date 24-01-2013,
PW-1, stating that the telephonic calls made by accused
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
No.2 to their land line telephone No.283085 have been
recorded by them by making use of the collar ID,
produced those two Compact Discs (CDs) and he (this
witness) seized those two Compact Discs (CDs) by
drawing the seizure panchanama as per Ex.P-5. The
witness has identified the said Compact Discs (CDs) at
MO-17 and MO-18.
88. PW-7 (CW-7) - Sri. Raveendra Acharya has
stated that, after recording the telephonic calls made by
accused No.2 to PW-4 and PW-5, PW-1 has prepared two
Compact Discs (CDs) and produced the same before the
Police. The Police has seized the same by drawing a
Mahazar as per Ex.P-5. Stating so, the witness has not
only identified the Mahazar but also the two Compact
Discs (CDs) at MO-11 and MO-12 and his signature at
Ex.P-5(b). Later on, the very same witness in his further
examination-in-chief recorded on the date 02-02-2016 has
stated that the Compact Discs (CDs) containing the voice
recording of the telephonic calls of accused No.2 are MO-
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
17 and MO-18 and his signature is present on the chits
pasted on them and that instead of
MO-18 and MO-17, they were identified as MO-11 and MO-
12 in his earlier examination. The same has not been
denied from the accused's side since the accused stated
that they have no cross-examination of the witnesses on
the said point. Therefore, it stands established that two
Compact Discs (CDs) at MO-17 and MO-18 were shown to
have been produced by PW-1 as the voice recording of
accused No.2 in her alleged telephonic conversation with
PW-4 and PW-5.
89. The next question would be, whether those
Compact Discs(CDs) contain the voice of accused No.2 and
whether the conversation recorded therein are threats
given by accused No.2 to the family of PW-1 to PW-5 ?
90. PW-25 (CW-28) - Sri. Raviraj - the then Police
Constable, stated to be working on deputation in the
Office of the Superintendent of Police, Mangaluru in
Computer Section has stated that, as per the order of the
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
Fast Track Court at Puttur, to record the audio sample of
accused No.2, he, along with the Investigating Officer and
the required equipments including a Laptop visited the
District Jail and in the presence of the Superintendent of
Jail, the Investigating Officer - Sri. Jagadeesh Reddy C.R.
(PW-31) enquired the accused No.2 and he (this witness)
recorded the video of the recording of the voice of accused
No.2. Then, from the said video, it was downloaded to the
Laptop in the Office of the Superintendent and a Compact
Disc (CD) was prepared with the said contents and handed
it over to Sri. Jagadeesh Reddy. He also stated that at
that time, PW-23 and CW-30 were also present. The
Investigating Officer - Sri.Jagadeesh Reddy seized the
same under a mahazar, which this witness has identified
at Ex.P-30. The witness has identified the said Compact
Disc (CD) at MO-16.
In his cross-examination, he gave more details about
the manner of recording the audio sample of accused
No.2.
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C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
91. PW-31 (CW-32) - Sri. Jagadeesh Reddy C.R., in
his evidence has stated that after seizing the two Compact
Discs (CDs) given by PW-1 alleging that it was the
recording of the telephonic calls by accused No.2 to their
house and as per the order of the Court on the date 15-
05-2013, summoning PW-25 and requesting the
Superintendent of Jail, Mangaluru, he visited the Office of
the Superintendent, District Jail, Mangaluru and got
recorded the video of the audio recording of accused No.2
through PW-25. Thereafter, it was down loaded in the
Office of the Superintendent of Jail to a Laptop and a
Compact Disc (CD) was prepared and seized by him under
a panchanama at Ex.P-30. This witness also has identified
the said CD at MO-16.
92. Apart from PW-25 and PW-31 speaking about
the voice recording of the accused No.2 in a Compact Disc
(CD) at MO-16 and PW-1 stating that the telephonic calls
made by accused No.2 to their house were recorded
through the voice recorder using the caller ID of their land
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
line telephone and down loaded to the Compact Disc(CD)
which he has identified at MO-17 and MO-18, even PW-32
- the Investigating Officer also has collected the Call Detail
Record (CDR) about the accused persons talking inter se
through their cell phones, from the Computer Section of
the Office of the Superintendent of Police, Mangaluru. He
has identified the said CDR at Ex.P-39. He has stated that
the cell phone No.9008853725 and cell phone
No.7676660849 belongs to accused No.1, cell phone
No.9900104255 belongs to accused No.3, cell phone
No.9008735645 belongs to PW-5 and cell phone
No.9972787886 belongs to accused No.2. However, this
witness (PW-32) nowhere has stated as to the CDR of
which cell phone number Ex.P-39 reveals. Nowhere in his
evidence he has stated as to who have made calls to
whom and how many calls are made. Even though Ex.P-
39 would show the telephone numbers stated by this
witness, however, merely by those telephone numbers, it
cannot be inferred that accused No.2 contacted accused
No.1 and accused No.3 and conspired a plan for throwing
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
acid upon PW-1 to PW-3. The contents of the CDR as to
what exactly the conversation that had taken place is
neither placed before the Court nor stated by any of the
prosecution witnesses. Therefore, so far as the calls made
by accused No.2 to other accused persons and also to
PW-5, the CDR at Ex.P-39 may not be of much help to the
prosecution.
93. About the voice said to have been recorded by
PW-25 in the presence of PW-31 of accused No.2 in the
CD at MO-16 was said to have been sent to M/s. Truth
Labs through PW-10 as stated by PW-31. The copies of
the said CD at MO-16 are said to have been submitted to
the Court which PW-31 has identified at MO-11 and
MO-12.
94. PW-30 (CW-31) - Smt.S. Neeru - the then
Assistant Director of Cyber & Audio Video Division of M/s.
Truth Labs has stated that she has examined the three
CDs sent by the complainant Police through the Office of
the Deputy Superintendent of Police, Puttur Sub-Division
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
and after scientifically examining them, has given a report
as per Ex.P-36. She has stated that, in her opinion, the
voice characteristics of the speakers Q55/1 are similar
with the characteristics of the speaker S2/1. The voice
characteristics of the speakers Q1/1, Q16/1, Q26/1,Q29/1
and Q35/1 are similar with the characteristics of the
speakers S2/1 and S3/1. However, she has not
mentioned the names of any of the speakers in her
evidence.
95. Though the report of this witness (PW-30) would
go to show that the sample voice of accused No.2 tallies
with her alleged voice in the three CDs, however, PW-30
in her cross-examination from the side of accused No.2
has admitted a suggestion that she has tested only one
person's voice sample in the CD. She also admitted that
the voice sample of other speakers whose voice were also
present in the CD from Q1 to Q133 were not provided to
her. Hence she has not tested the same. She further
admitted that Q1 to Q133 have been down loaded from
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
other recording device. She also admitted a suggestion as
true that, now a days, advance technology provides to cut
and paste the voice of a person in a CD and soft wares are
available which will repeat our voice in someone else's
voice. She also admitted as true that out of 133
Questions recorded, she could identify only about a dozen
as tallying with the sample version. Thus, even according
to PW-30, the said evidence was also not a foolproof that
the alleged voice said to have been recorded in MO-17 and
MO-18 are that of accused No.2 only and that they were
not either copy paste or cut and paste from other audio
recorded or prepared by using a software which enables
the imitation of the voice.
96. Further, admittedly, the sample voice/audio of
PW-3 to PW-5 had not been sent to M/s. Truth Labs for
comparison of those voices as that of PW-3 or PW-4 or
PW-5 in order to enable the Court to arrive at a conclusion
that even the conversation in MO-17 and MO-18 alleged to
be of accused No.2 were received and responded over the
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
phone by any of the prosecution witnesses much less
PW-3 to PW-5. As such, it is not safe to arrive at a
conclusion that the alleged voice of the caller in MO-17
and MO-18 was that of accused No.2 and accused No.2
alone. Therefore, it is not safe to believe that accused
No.2 was repeatedly calling PW-4 - the mother of PW-5
and threatening her of dire consequences in case if the
family of PW-5 proceeded to get married some other girl
to PW-5 instead of accused No.2.
97. Added to the above, it also cannot be ignored of
the fact that, had any such threatening calls were
repeatedly being made by accused No.2 to any of the
family members of PW-1 including PW-4, then, it was
expected of the family of PW-1 to file an appropriate Police
complaint against the caller. However, admittedly, no
such complaint has been filed by them. Further, accused
No.2 is also not charged for the offences punishable either
under Section 504 or under Section 506 of the IPC.
Therefore, suffice it to say that the prosecution could not
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C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
able to prove that accused No.2 was repeatedly calling
PW-5 or PW-4 or her house and threatening them of dire
consequences. This disproves one of the inputs alleged by
the prosecution for accused No.2 to have a motive to kill
the family of PW-1 and to hatch a conspiracy with accused
No.1 and accused No.3 in that regard.
98. The other major evidence for the prosecution to
prove the alleged conspiracy, as observed above, is the
evidence of PW-16. Though this witness has stated that
he has seen the accused No.1 and accused No. 2 moving
together in the Autorickshaw of accused No.1 bearing
registration No.7612 and also has stated that he has seen
both accused No.1 and accused No.2 drinking juice in
Hariprasad Hotel at Bolwar and also seen on the date
08-04-2012, accused No.2 giving money to accused No.1
in front of Sri. Mahalingeshwara Temple at Putturu,
however, those statements are too weak to believe at
their face value. PW-16 has not stated on which date and
time he has seen accused No.1 and accused No.2 going
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
together in the Autorickshaw bearing registration No.7612.
He has not stated on which date and time he has seen
accused No.1 and accused No.2 together consuming juice
in Hotel Hariprasad. He has also not stated at what time
on the date 08-04-2012, he has seen accused No.2 giving
money to accused No.1 near Sri. Mahalingeshwara Temple
at Putturu.
99. When a charge for the offence punishable under
Section 120B of the IPC is made, then, basing a bald
statement by a prosecution witness about he witnessing
the accused moving together or taking juice together in a
Hotel itself is not sufficient to arrive at a conclusion that
there was any conspiracy between them.
100. Basically in the instant case, due to the
absence of the necessary details and arising of several
doubts in the evidence of PW-16, it proves to be not safe
to believe that the said witness (PW-16) has seen accused
No.1 and accused No.2 at different places as stated by
him. PW-16 has also not stated as to how he could able to
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
see them at different places on different dates, may be,
even at different timings and how his presence at all those
places, dates and timings could be expected and was
possible, is also doubtful.
In addition to the same, had really accused No.1 and
accused No.2 consumed juice together while hatching a
conspiracy prior to the date of incident at Hotel
Hariprasad, then, the Investigating Officer should have
necessarily enquired the Hotel Staff or the owner and the
prosecution should have examined them as witnesses and
elicited the details from them. However, no such attempt
has been made. Similarly, if accused No.1 and accused
No.2 have met in any public places including the Hotel or
on their way to Hotel or any public road or even near Sri.
Mahalingeshwara Temple while accused No.2 is said to
have handed over money to accused No.1, then the same
could have been recorded in some CCTVs installed in those
areas by any of the house owners or Shop keepers or even
by Temple authority. However, there is no evidence
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
coming from the prosecution side about the availability of
any CCTC footages or the reason for the Investigating
Officer for not collecting the CCTV footages in that regard.
As such also, the lone evidence of PW-16, who, in his
cross-examination, has admitted that PW-1 to PW-5 are
not only of his Village but also are his relatives, does not
inspire confidence to believe the same. As such, the
prosecution could not able to establish either the motive
behind the alleged commission of the crime or the
conspiracy among the accused No.1, accused No.2, and
accused No.3.
101. Merely because the prosecution has failed to
prove the alleged conspiracy among accused No.1,
accused No.2 and accused No.3 and failed to prove motive
behind the alleged commission of the crime, by that itself,
it cannot be concluded that the prosecution could not
prove its case as against accused No.1 and accused No.3.
Due to the absence of the alleged conspiracy among the
accused persons and the proof of alleged motive behind
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
the commission of the crime, though the prosecution could
not able to prove its case as against accused No.2,
however, it cannot be said that accused No.1 and accused
No.3 also get the similar benefit of doubt and they cannot
be convicted.
102. Our Hon'ble Apex Court in the case of Khurshid
Ahmed Vs. State of Jammu and Kashmir, reported in
(2018) ACR 696, with respect to an offence punishable
inter alia under Section 302 of the IPC and about the
concept of motive, after referring to its previous judgment
in the case of Shivaji Genu Mohite -vs- State of
Maharashtra, reported in AIR 1973 SUPREME COURT 55,
was pleased to observe in Paragraph-16 of its judgment
that, motive is an emotion which compels a person to do a
particular act. But, in all the cases, it will be very difficult
for the prosecution to prove the real motive. The motive
is a double edged weapon. When there is a direct and
reliable evidence available on record, motive loses its
importance. In a case of circumstantial evidence, motive
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C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
assumes greater importance than in the case of direct
evidence. In a case of direct and compelling evidence,
even assuming that no motive is attributed, still, the
prosecution version has to be examined.
103. In the instant case, PW-1, PW-2 and PW-3 are
the injured eye witnesses. Their evidence, as analysed
above, gives no scope for any iota of doubt making their
evidence to disbelieve or suspect.
104. Our Hon'ble Apex Court in the case of
LAKSHMAN SINGH Vs. STATE OF BIHAR (NOW
JHARKHAND) and connected matters reported in (2021) 9
Supreme Court Cases 191, in sub-paragraphs 9.1 and 9.2
of its judgment, referring to its previous judgment in the
case of Abdul Syeed Vs. State of M.P., [(2010) 10 SCC
259], was pleased to observe that, the evidence of the
injured witnesses is entitled to a great weight and very
cogent and convincing grounds are required to discard
their evidence. Thus, the deposition of the injured
witness should be relied upon unless there are strong
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
grounds for rejection of his evidence on the basis of major
contradictions and discrepancies therein. It was further
observed by their Lordships that, "being injured
witnesses, their presence at the time and place of
occurrence cannot be doubted".
105. In the instant case also, as analysed above,
PW-1, PW-2 and PW-3 who are the victims have clearly
and specifically identified accused No.1 and accused No.3
as the persons who approached them and threw acid upon
them. Their evidence also shows that accused No.1, who
was sitting in the backseat of the Autorickshaw told
accused No.3 as these are the same persons and it is
only thereafter accused No.3 proceeded to take out the
acid bottle from beneath the driver's seat in the
Autorickshaw and threw acid upon PW-3 at first and
thereafter to PW-1 and PW-2. The evidence of PW-1 to
PW-3 that in the spot after approaching PW-1 to PW-3,
near Venkateshwara Saw Mill Gate in their Autorickshaw,
both accused No.1 and accused No.3 talked to each other
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
and pretended that they have brought the gold for
polishing and then they confirmed that PW-1 to PW-3 are
from Mathrushree Jewellers would all go to establish
beyond doubt that both accused No.1 and accused No.3
had a common intention of attacking PW-1 to PW-3 and
throwing acid upon them. It is only there upon in
furtherance of their common intention, accused No.3 has
thrown acid at PW-3 initially and PW-1 and PW-2
thereafter.
106. The evidence of PW-14 - Sri. Sadashiva that
PW-3 ran into his house and requested for some water in
large quantity and when he gave a pot full of water, he
(PW-3) poured the said water on his head and also stated
to PW-14 that he was thrown with acid and requested PW-
14 to take him to the Hospital, which request was obliged
by PW-14, also corroborates that such an incident of acid
throw/attack, has in fact, taken place where PW-3
sustained burn injuries.
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C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
107. The evidence of PW-6 that the clothes of PW-1,
PW-2, PW-3 as per MO-1 to MO-7 and MO-9 and the notes
as per MO-8 were seized in his presence by drawing a
seizure panchanama as per Ex.P-2 and corroboration of
the said evidence by PW-7 and identification of those
clothes and notes by PW-1 to PW-3 and also the evidence
of PW-24 - the Scientific Officer at the Forensic Science
Laboratory (FSL) that MO-1 to MO-9 and the glass pieces
at MO-10 and the Shirt of the accused No.3 at MO-15
shown the presence of concentrated sulphuric acid
residues and which sulphuric acid can cause burn injuries
on the human skin not only corroborates the evidence of
PW-1 to PW-3 about the occurrence of the incident and
the accused No.1 and accused No.3 committing the act,
but also proves the case of the prosecution beyond
reasonable doubt that it was the accused No.1 and
accused No.3 alone who have poured sulphuric acid upon
PW-1, PW-2 and PW-3 and caused burn injuries to them.
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
108. The accused have taken a defence in the form
of suggestions made to PW-1 to PW-3 in their cross-
examination that PW-1 to PW-3 being Goldsmiths they
use acid and by mishap and due to the carelessness at
their end, they sustained burn injuries. A suggestion was
also made to PW-3 in his cross-examination that, he asked
the accused No.2 to send her daughter to CW-5 (his
brother) PW-5 - Ashok and with an intention to implicate
accused No.2, a false case has been hoisted against
them. The said witness has denied the said suggestion
made to him.
109. Had PW-1 to PW-3 sustained burn injuries
while dealing with acid in their professional work as
Goldsmiths, then the said sustaining of injuries would not
have been on the same date, time and place alleged in the
charge and by all the three PWs, i.e. PW-1, PW-2 and
PW-3 together, which is proved by the prosecution, as
analysed above. If at all such a mishap had taken place, the
same would have been in the Shops of PW-1 and/or PW-3 but it
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C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
cannot be in a public place in front of the gate of
Venkateshwara Saw Mill which is far away from the
Jewellery Shops of PW-1 and PW-3.
110. Similarly, if the alleged grudge by the family of
PW-1 to PW-5 was only against accused No.2 and if they
really wanted to implicate her in the criminal case, then
there was no reason for them to implicate accused No.1
and accused No.3 in the case and to identify them as the
culprits who threw acid upon them. Therefore, the defence
taken by the accused persons neither sustains nor
contributes in creating any doubt in the case of the
prosecution, particularly, as against accused No.1 and
accused No.3.
However, in the absence of the prosecution proving
the aspect of conspiracy against accused No.1 and
accused No.3, the conviction of accused No.1 and accused
No.3 for the offence punishable under Section 120B of the
IPC would not sustain.
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C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
111. However, as analysed above with proper
reasons, when accused No.1 and accused No.3 being
physically present have thrown acid upon PW-1, PW-2 and
PW-3 and inflicted burn injures upon them and the
analysis made above shows that both accused No.1 and
accused No.3 together came in an Autorickshaw and
committed the offence after identifying PW-1 to PW-3
between them and before pouring the acid, they also
talked inter se to give an impression that they were
approaching PW-1 to PW-3 as customers, however, they
had forgotten to bring gold ornaments for polishing, would
all go to show that accused No.1 and accused No.3 had a
common intention to commit the alleged offence of
throwing acid upon PW-1 to PW-3 which they executed in
the manner analysed above. Therefore, even in the
absence of proof for the guilt punishable under Section
120B, the conviction of the accused persons (i.e. accused
No.1 and accused No.3) under Section 34 of the IPC would
hold good.
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C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
112. Further, though accused No.1 and accused
No.3 were charged for the offence punishable under
Section 307 of the IPC, however, the learned Sessions
Judge's Court, after analysing the evidence and giving the
reason has held that the act of accused No.1 and accused
No.3 cannot be considered as an attempt to commit the
murder of PW-1 to PW-3 but it was a voluntary act of
accused No.1 and accused No.3 in causing a grievous hurt
to PW-1 to PW-3, making use of a corrosive substance like
sulphuric acid by dangerous means and thus has arrived
at a conclusion that the proven act of accused No.1 and
accused No.3 would fall under Section 326 of the IPC, but
not the one punishable under Section 307 of the IPC.
113. In this appeal, i.e. Criminal Appeal
No.71/2017, filed by State against accused No.1 and
accused No.3, the State has not prayed for convicting the
accused No.1 and accused No.3 for the offence punishable
under Section 307 of the IPC, on the other hand, it has
sought for modification of the impugned judgment and
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C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
order dated 28-04-2016 passed by the learned Sessions
Judge's Court in Sessions Case No.90/2012 by imposing
proper, adequate and maximum sentence to accused No.1
and accused No.3 for the offences punishable under
Sections 326 and 120B read with Section 34 of the IPC.
114. As such, since it is observing that the alleged
conspiracy among accused persons including accused No.1
and accused No.3 for the offence punishable under Section
120B of the IPC could not be established, the appeals
filed by the accused No.1 and accused No.3, i.e. Criminal
Appeal No.1154/2016 and Criminal Appeal No.1644/2016
deserves to be allowed in-part to the extent of acquitting
both the appellants therein (accused No.1 and accused
No.3) for the offence punishable under Section 120B of
the IPC only. However, the offence punishable under
Section 326 read with Section 34 of the IPC for which
they were found convicted deserves to be confirmed.
115. Whereas the appeal filed by the State in
Criminal Appeal No.70/2017 challenging the acquittal of
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
accused No.2 from the alleged offences punishable under
Sections 326, 120B and 307 read with Section 34 of the
IPC does not deserve to be allowed.
116. For these reasons, the impugned judgment
acquitting accused No.2 for the offences punishable under
Sections 120B, 326 and 307 read with section 34 of the
IPC and convicting accused No.1 and accused No.3 for the
offence punishable under Section 326 read with Section 34
of the IPC cannot be found fault with.
117. After hearing accused No.1 and accused No.3
and their respective counsels and the State represented by
the learned Public Prosecutor, the learned Sessions
Judge's Court sentenced accused No.1 and accused No.3
to undergo rigorous imprisonment for a period of four
years and fifteen days each and accused No.1 to pay a
fine of a sum of `2,500/- each and accused No.3 to pay a
fine of a sum of `7,500/-, in default of payment of fine,
accused No.1 and accused No.3 to undergo rigorous
imprisonment for a period of three months each for the
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
offence punishable under Section 326 read with Section 34
of the IPC
118. For computation of the length of imprisonment
ordered by it, the learned Sessions Judge's Court observed
that, on enquiry, accused No.3 submitted that he was
aged about 26 years having old aged parents who are
suffering with ailments. He has an unmarried sister and
the maintenance of his family was on his shoulder.
Accused No.1 is shown to have stated that he is a bachelor
and having old aged parents whom he has to maintain. It
is considering these aspects, the learned Sessions Judge's
Court proceeded to pass the impugned order on sentence.
119. It is the sentencing policy that the sentence
ordered must be proportionate to the gravity of the proven
guilt. It shall be neither exorbitant nor for the name-sake.
It is taking into consideration all the circumstances of the
case, the sentence is required to be ordered.
120. The learned counsels for the respondent No.1
(accused No.1) and respondent No.2 (accused No.3) in
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
Criminal Appeal No.71/2017 have only stated that the
sentence ordered is reasonable and does not warrant any
interference at the hands of this Court.
121. Per contra, learned High Court Government
Pleader for the appellant State in the said appeal
submitted that the sentence ordered deserves to be
enhanced in the facts and circumstances of the case.
122. Section 326 of the IPC prescribes the
punishment with imprisonment for life or with
imprisonment of either description for a term which may
extend to ten years and also for fine.
123. Since regarding the quantum of sentence, the
submission from the learned counsels from both side in
Criminal Appeal No.71/2017 has already been heard, there
is no necessity of hearing them once again on the
sentence.
124. In the facts and circumstances of the case, we
are of the view that the sentence ordered by the Sessions
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
Judge's Court under the impugned order on sentence
dated 30-04-2016 is very much less than the
proportionality of the proven guilt against them. The
nature of the injuries sustained by PW-1, PW-2 and PW-3
due to the acid thrown upon them by accused No.1 and
accused No.3 are multiple grievous burn injuries.
According to the medical evidence, the vision of PW-3 has
also been reduced due to acid being thrown on his eyes
also. The evidence recorded by the learned Sessions
Judge's Court of PW-3 also shows that the scar of the acid
thrown marks were still visible and the Court while
recording his evidence has noticed the same.
As analysed above, for the burn injuries sustained by
PW-3, the Doctors had advised PW-3 to undergo a plastic
surgery as the face of PW-3 was shown to be disfigured
due to acid thrown on his face.
125. Under the said circumstances, the quantum of
sentence ordered upon accused No.1 and accused No.3 for
the proven guilt punishable under Section 326 read with
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016,
CRL.A.No.1644 of 2016 &
CRL.A.No.71 of 2017
Section 34 of the IPC deserves to be enhanced. However,
since the order regarding the sentence under the
impugned judgment passed by the Sessions Judge's Court
was on the date 30-04-2016, which was more than seven
years back from today, we are of the view that accused
No.1 and accused No.3 be heard once again regarding the
quantum of sentence before proceeding to pass any order.
Accordingly, we proceed to pass the following:
ORDER
[I] Criminal Appeal No.70/2017 filed by appellant-State stands dismissed as devoid of merit;
[II] Criminal Appeal No.1154/2016 and Criminal Appeal No.1644/2016 filed by accused No.1 and accused No.3 respectively are partly allowed;
(i) The impugned judgment of conviction dated 28-04-2016 and order on sentence dated 30-04-2016 passed in
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016, CRL.A.No.1644 of 2016 & CRL.A.No.71 of 2017 Sessions Case No.90/2012 by the learned V Additional District and Sessions Judge, Dakshina Kannada, Mangalore, sitting at Puttur, Dakshina Kannada, convicting the accused No.1 (Sri. Mohan Kumar Hegde @ Mohana) and accused No.3 (Sri. Prashanth) for the offence punishable under Section 120B of the Indian Penal Code, 1860, stands set aside;
(ii) The appellant in Criminal Appeal No.1154/2016, i.e. Accused No.1 - Sri. Mohan Kumar Hegde @ Mohana, S/o. Purushothama Hegde, Aged about 32 years, Auto Rickshaw Driver, R/at Tarigudde House, Chikkamudnoor village, Puttur Taluk, D.K. 574 202; and the appellant in Criminal Appeal No.1644/2016, i.e. accused No.3 - Sri. Prashanth, S/o. Gangadara Poojary, Aged about 26 years, Rickshaw Driver, R/o. Kaipangala, Ottemundoor House, Narimogru Village,
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016, CRL.A.No.1644 of 2016 & CRL.A.No.71 of 2017 Puttur, Dakshina Kannada - 574 201, are acquitted of the offence punishable under Section 120B of the Indian Penal Code, 1860;
(iii) The conviction of accused No.1 and accused No.3 for the offence punishable under Section 326 read with Section 34 of the Indian Penal Code, 1860, under the same judgment stands confirmed.
(iv) Crl.A.No.71/2017 stands partly allowed.
126. Since the Court has opined to hear accused No.1 and accused No.3 before pronouncement of its order on the quantum of sentence in Criminal Appeal No.71/2017, the matter is passed over.
Sd/-
JUDGE Sd/-
JUDGE BMV*
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016, CRL.A.No.1644 of 2016 & CRL.A.No.71 of 2017 Dr.HBPSJ & ABKJ:
30-10-2023 HEARING ON SENTENCE Called again.
127. Heard both side in Criminal Appeal No.71/2017 on the point of the quantum of sentence on the proven guilt of accused No.1 and accused No.3 for the offence punishable under Section 326 read with Section 34 of the Indian Penal Code, 1860.
128. The learned counsels appearing for accused No.1 and accused No.3 in their submission regarding quantum of sentence, uniformly submitted that, both the accused No.1 and accused No.3 are family holders with wife, children and parents as dependents upon them and the accused No.1 and accused No.3 are the only bread earners in their family. More than eleven years have elapsed since the date of the alleged offence, as such,
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016, CRL.A.No.1644 of 2016 & CRL.A.No.71 of 2017 enhancement of sentence, at this stage, may not be warranted.
They further submitted that, neither accused No.1 nor accused No.3 had any intention or motive to commit the alleged offence, as such, considering these mitigating factors, the period of imprisonment which has already been undergone by each one of them to a length of four years fifteen days itself be considered as reasonable and proportionate sentence for the proven guilt.
129. Per contra, learned High Court Government Pleader for the appellant - State submitted that, the proven offence is punishable with sentence upto life imprisonment. The act committed by accused No.1 and accused No.3 is against three victims by throwing acid upon their face and other parts of the body, thus causing their disfigurement which has permanently ruined their physique and personality. Under the said circumstance, the maximum sentence prescribed for the proven guilt under the statute be ordered/imposed upon them.
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016, CRL.A.No.1644 of 2016 & CRL.A.No.71 of 2017 He further submitted that the reasons given by the learned counsels for accused No.1 and accused No.3 for not enhancing the sentence is created and founded only for the purpose of avoiding getting a proportionate and reasonable punishment for their proven guilt. With this, he prays for ordering maximum sentence permissible under the law for the proven guilt under Section 326 of the IPC.
130. Reiterating our observation made in the above paragraphs in the above judgment of conviction that the sentence ordered for a proven guilt must be proportionate to the gravity of the proven guilt and that it shall not be exorbitant or for name sake and also taking into consideration the alleged mitigating factors and the submission made by the learned counsels from both side, we proceed to pass the following:
ORDER ON SENTENCE [i] The order on sentence ordered by the learned V Additional District and Sessions Judge,
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C/w. CRL.A No.1154 of 2016, CRL.A.No.1644 of 2016 & CRL.A.No.71 of 2017 Dakshina Kannada, Mangalore, sitting at Puttur, Dakshina Kannada, on 30-04-2016, in Sessions Case No.90/2012 against accused No.1 and accused 3 stands modified to the extent that accused No.1 and accused No.3 are sentenced to undergo rigorous imprisonment for a period of seven years each and shall pay a fine of a sum of `10,000/- each for the offence punishable under Section 326 read with Section 34 of the IPC. In default of payment of fine by any of the defaulting accused No.1 or accused No.3, the defaulting accused shall further undergo rigorous imprisonment for a period of three months;
[ii] Out of the fine amount collected from accused No.1 and accused No.3, a sum of `15,000/- shall be paid to PW-3, as compensation and a sum of `2,500/- each shall be paid to PW-1 and PW-2 as compensation
- 134 -CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016, CRL.A.No.1644 of 2016 & CRL.A.No.71 of 2017 under Section 357 of the Code of Criminal Procedure, 1973;
[iii] The remaining portion of the impugned order on sentence dated 30-04-2016 passed by the learned Sessions Judge's Court, including the entitlement of accused No.1 and accused No.3 for set-off under Section 428 of the Code of Criminal Procedure, 1973, liberty granted to PW-1 to PW-3 to approach the District Legal Services Authority, Mangaluru or the DLSA, Mangaluru, to suo-motu consider the granting of compensation to PW-1 to PW-3 under Section 357A(2) of the Cr.P.C. and also regarding confiscation of MO-13 and MO-14 to the Government and destruction of MO-1 to MO- 12 and MO-15 to MO-18, being worthless, remains unaltered;
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016, CRL.A.No.1644 of 2016 & CRL.A.No.71 of 2017 [iv] Accused No.1 - Sri. Mohan Kumar Hegde @ Mohana, S/o. Purushothama Hegde, Aged about 32 years, Auto Rickshaw Driver, R/at Tarigudde House, Chikkamudnoor village, Puttur Taluk, D.K. 574 202 and accused No.3 - Sri. Prashanth, S/o. Gangadara Poojary, Aged about 26 years, Rickshaw Driver, R/o. Kaipangala, Ottemundoor House, Narimogru Village, Puttur, Dakshina Kannada - 574 201, shall voluntarily surrender before the Court of the learned V Additional District and Sessions Judge, Dakshina Kannada, Mangalore, sitting at Puttur, Dakshina Kannada, within forty five (45) days from today and serve the modified sentence, as ordered above;
[v] Accused No.1 and Accused No.3 are entitled for a free copy of this judgment, without delay.
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CRL.A No.70 of 2017
C/w. CRL.A No.1154 of 2016, CRL.A.No.1644 of 2016 & CRL.A.No.71 of 2017 Registry to transmit a copy of this judgment to the concerned Sessions Judge's Court along with its records and also a copy of this judgment to the concerned District Legal Services Authority, Mangaluru for their information and needful in the matter.
Sd/-
JUDGE Sd/-
JUDGE Bk/BMV*