Karnataka High Court
Sri. Madesha @ Mahesh vs The State on 18 July, 2023
Author: K.Somashekar
Bench: K.Somashekar
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CRL.A No.171 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO.171 OF 2018 (C)
BETWEEN:
1. SRI. MADESHA @ MAHESH
S/O PUTTAMADANAIKA,
RESIDING AT SANTHEGALA, KOTA VILLAGE,
KOLLEGALA TALUK-571440
...APPELLANT
(BY SRI P.P. HEGDE, SENIOR ADVOCATE
FOR SRI. VENKATESH SOMAREDDI., ADVOCATE)
AND:
1. THE STATE
THROUGH INSPECTOR OF POLICE,
Digitally signed by
LAKSHMINARAYAN KOLLEGAL RURAL POLICE STATION, KOLLEGAL
N
Location: High REP BY THE LEARNED STATE PUBLIC
Court of Karnataka
PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU-01
...RESPONDENT
(BY SRI VIJAYAKUMAR B. MAJAGE, SPP-II)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 16.12.2017 PASSED BY THE ADDITIONAL
DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGARA
(SITTING AT KOLLEGALA) IN S.C.NO.78/2014 - CONVICTING
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CRL.A No.171 of 2018
THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 341 AND
302 OF IPC; THE APPELLANT/ACCUSED IS SENTENCED TO PAY
FINE OF RS.500/- FOR THE OFFENCE P/U/S 341 OF IPC; THE
APPELALNT/ACCUSED IS SENTENCED TO UNDERGO
IMPRISONMENT FOR LIFE AND TO PAY FINE OF RS.500/- FOR
THE OFFENCE P/U/S 302 OF IPC. THE APPELLANT/ACCUSED
PRAYS THAT HE BE ACQUITTED.
THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, SOMASHEKAR J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment of conviction and order of sentence dated 16th December 2017 rendered by the Court of Additional District and Sessions Judge, Chamarajanagar (sitting at Kollegala) in SC No.78 of 2014, whereby the accused is convicted for the offence punishable under Sections 341 and 302 of the Indian Penal Code, 1860 sentencing that the accused shall suffer imprisonment for life and shall pay fine of Rs.500/- for offence punishable under Section 302 of Indian Penal Code; and the further sentenced to pay fine of Rs.500/- for the offence punishable under Section 341 of Indian Penal Code.
2. Heard learned Senior Counsel Sri P.P. Hegde, for the appellant/accused and Sri Vijayakumar B. Majage, learned State Public Prosecutor for the respondent-State and perused -3- NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 the impugned judgment of conviction and order of sentence rendered by the trial Court.
3. The factual matrix of this appeal are:
That on 01st June, 2014 at around 6.30 hours in the evening at Kote Maramma Temple within the limits of Kollagal Rural Police Station in Chamarajanagar District, the accused picked up quarrel with the deceased Raju @ Rajesh who is none other than his brother with regard to bringing his wife and children from her parents house. The deceased is said to have opposed to bringing his wife and children from the parents house which is situated at Satteagala. The accused wrongfully restrained the deceased from moving from that place, and thereafter assaulted the deceased with the help of a broken beer bottle on the right side of his neck with an intention to eliminate him. In pursuance of the act of the accused, upon filing of the complaint by the complainant, criminal law was set into motion by recording First Information Report as per Exhibit-P18. Subsequent to registration of the crime against the accused, the Investigating Officer has taken up the case for investigation and during investigation, the Investigating Officer -4- NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 has conducted the spot mahazar at Exhibit P2; inquest mahazar of the dead body as per Exhibit P3; seizure mahazar at Exhibit P4; and one more seizure mahazar at Exhibit P11. The dead body of the deceased was sent to mortuary wherein the Doctor has conducted autopsy over the dead body and issued Post- mortem report as per Exhibit P15. During the course of investigation, the Investigating Officer has recorded voluntary statement of accused as per Exhibit P16 and based upon the voluntary statement, the Investigating Officer has taken up the case for investigation. After completion of the entire investigation by recording the statement of witnesses, so also, securing the material documents which finds place in the charge sheet, the Investigation Officer laid the charge sheet against the accused before the committal Court.
4. Subsequent to filing of charge sheet by the Investigating Officer against the accused, the Committal Court had passed an order under Section 209 of the Code of Criminal Procedure Code whereby committed the case to the Court of Sessions for trial. Consequently, the case in SC No.78 of 2014 has been assailed to proceed for facing up the trial by the accused. Subsequent to securing the accused for facing up the -5- NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 trial, learned Public Prosecutor for the State and the learned defence counsel for the accused, wherein on prima facie material filed against the accused in the charge sheet relating to offence punishable under Section 302 and 341 of the Indian Penal Code, 1860, framed charge against the accused. The charges were read over to the accused in a language known to him and the accused has declined to accept the charge and claimed for trial.
5. Subsequently, the prosecution has examined witnesses PW1 to PW24 in order to prove the guilt of the accused and got marked Exhibit P1 to P21, so also, got marked materials as MO1 to MO6.
6. Subsequent to closure of the entire evidence on the part of the prosecution including compliance of relevant provisions by the defence side, the trial Court had recorded the statement as hit under Section 313 of the Code of Criminal Procedure for enabling the accused to answer to the incriminating evidence that finds place in the record and thereby, the accused has declined the incriminating evidence available against the him and did not come forward to lead any -6- NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 defence evidence on his side as contemplated under Section 233 of the Code of Civil Procedure.
7. Subsequently, the trial Court heard the argument for the parties, wherein PW1 who is none other than the wife of the deceased in her evidence has stated that there was quarrel between her husband-deceased and the accused; the accused was assaulted with means of a broken beer bottle at the vital part of his neck, as a result of that the deceased sustained injury. The same has been indicated in the post-mortem report at Exhibit P15, whereby the Doctor had conducted autopsy over the dead body and noticed about the injuries inflicted on the deceased and similarly, injury has been noted in Exhibit P3- inquest mahazar conducted over the dead body. The seizure mahazar at Exhibits P4 and P11 was conducted by the Investigating Officer in the presence of panch witnesses. These are all the materials which are secured by the Investigating Officer during the course of investigation, whereby the trial Court had appreciated the evidence of PWs1 to 19, PW24 including the evidence of PW21 being a Doctor who had conducted autopsy over the dead body and issued post-mortem report Exhibit P5; and more so, the evidence of PW1-Jyothi, -7- NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 who is none other than the wife of the deceased and also the author of the complaint at Exhibit P1. Based upon the voluntary statement of the accused at Exhibit P16, that the investigating officer has taken up case for investigation keeping in view Section 27 of the Indian Evidence Act, 1872 relating to the amount of information received to what extent that the disclosure statement said to have been proved relating to distinct facts that lead to recovery and discovery. These are all the evidence that find place in the record. Appreciating the evidence let in by the prosecution, ultimately the trial Court had taken a view that even though witnesses having turned hostile, but menace of the witnesses turning hostile visa-à-vis message to be given to the society at large. This view was expressed by the Hon'ble Supreme Court in certain judgments. Whereas the trial Court has banked upon the citation of NANDLAL WASUDEO BADWAIK v. LATA NANDLAL BADWAIK AND ANOTHER reported in (2014)2 SCC 576, wherein it is held that "truth must triumph" is the hallmark of justice. In essence, the first and foremost duty of every court/trial is to ensure that the truth comes out from the evidence/witnesses, so as to meet the ends of justice.
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8. The trial Court had also banked upon the concept of Section 134 of the Indian Evidence Act, 1872 that no particular number of witnesses/evidence is required to establish the fact. This was also decided by the Hon'ble Supreme Court in a plethora of cases. In the case on hand, the trial Court had opined that the real truth in this case is the initial version. It is only to the evidence of PW1-Jyothi who is none other than the wife of the deceased much significance has been given. She has fully supported the case of the prosecution being an eye- witness, more so the author of the complaint Exhibit P1. The Prosecution has successfully established the guilt against the accused beyond all reasonable doubt. Thereafter, the trial Court had rendered the conviction judgment for offence punishable under Section 302 and 341 of the Indian Penal Code. It is this judgment of conviction and order of sentence which is challenged in this appeal urging various grounds.
9. We have heard Sri P.P. Hegde, learned Senior Counsel appearing for the appellant, who has taken us through the evidence of PW1-Jyothi, the author of the complaint at Exhibit P1, so also, the wife of the deceased. On the fateful day, the accused, who is none other than the brother-in-law, in -9- NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 respect of PW1 bringing her and children from the parents house, there was some altercation between the deceased and the accused. But the exchange of words went on which resulted in death of the deceased by infliction of injury on the neck by a broken beer bottle, which was marked as material object No.1 by the Prosecution. PW1 who is an eye-witness has been subjected to examination. The trial Court has given more credentiality to the evidence of PW1. The said witness has resiled from her statement during the course of cross- examination. But the trial Court did not appreciate the same in the proper perspective and rendered the conviction judgment under Section 341 of the Indian Penal Code relating to the witness resiling from her earlier statement that at the particular point of time, the accused assaulted the deceased on his vital part of neck by a broken beer bottle. PW1 did not stand to her words of statement in the complaint made against the accused. PW4 to PW17 were all subjected to examination on the part of the prosecution, but they too did not stood to their version of statement and have turned completely hostile. Even though they have been subjected to cross-examination at length, nothing worthwhile has been elicited by the prosecution to
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NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 prove the guilt against the accused. PW5 and PW6 are not only the parents of the deceased but also the parents of the accused also; PW7, PW8 and PW12 to PW16 are all eye-witness to the incident as narrated in the complaint; PW9, PW10 and PW11 are the witnesses secured in order to conduct seizure mahazar in the presence of the Investigation Officer. But all these witnesses did not support the case of the prosecution and the same can be seen in the evidence that is facilitated by the prosecution. Despite the said fact, the trial Court had rendered the conviction sentence based upon certain variances which find place in the impugned judgment of conviction and order of sentence.
10. Section 134 of the Indian Evidence Act, 1872 indicate that it is true that only quality of the evidence and not the quantity of evidence that would weigh. But the quality of evidence in this case is the evidence of PW1 who is the author of the complaint at Exhibit P1 and more so, she is none other than the sister-in-law of the accused, so also, the wife of the deceased. But she did not stood to her statement in supporting the case of the prosecution. Section 161 of Code of Criminal Procedure relates to recording of the statement of witnesses.
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NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 Even though the Investigation Officer had recorded the statement of witnesses during the course of investigation, but PW2 to PW17 did not stood to their statements and the same finds place in paragraph 22 of the impugned judgment of conviction rendered by the trial Court. Despite all these evidences produced by the Prosecution, the trial Court had rendered the conviction judgment for the offence punishable under Section 341 of Indian Penal Code relating to the murder of the deceased by the accused by assaulting on his neck with the help of a broken beer bottle. Merely because the offence punishable under Section 302 of the Indian Penal Code had been lugged against the accused, unless ingredients are established by the prosecution by facilitating worthwhile, cogent, as well as consistent evidence, in securing the conviction and more so, to probablise the offence by mens rea and also actus reus at the moment when the heinous offence came to be committed under Section 302 of the Indian Penal Code. However, in the impugned judgment of conviction and order of sentence, the trial Court had made an observation that there was some compromise held in the incident even though it has been narrated by PW1 who is the author of the complaint
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NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 that mere because the matter was settled in terms of understanding, it cannot be a justifiable ground as well as not a sound reason for rendering conviction judgment against the accused. On this premise the learned Senior Counsel emphatically submits and seeks intervention of this Court with regard to impugned judgment of conviction and order of sentence and if the same is not intervened, the accused would be sufferer, so also, there would be miscarriage of justice. In support of his submissions, the learned Senior Counsel has placed reliance on the judgment in the case of GEORGE AND OTHERS v. STATE OF KERALA reported in (1998)4 SCC 605, wherein it is held that there shall be some proposition of law that First Information Report said to have been recorded by the investigating agency is based upon the complaint filed by the complainant. It is settled position that it is not the subjective proof of evidence to render the judgment of conviction.
11. Nextly, the learned Senior Counsel places reliance on the judgment of the Hon'ble Supreme Court in the case of STATE OF KARNATAKA v. P RAVI KUMAR reported in (2018)9 SCC 614 wherein the proposition of law is that when the witness resiles from his earlier statement, the statement
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NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 recorded under Section 164 of Code of Criminal Procedure, may not be of any relevance nor can it be considered as a substantive evidence to base the conviction. Section 164 of the Code of Criminal Procedure relates to confession statement to be recorded. The confession statement to be recorded is based upon the incident that is narrated in the complaint, but, it is only to test the provisions of Section 164 of Code of Criminal Procedure. In this regard, the learned Senior Counsel submits that PW1-Jyothi who is none other than the wife of deceased, so also, the sister-in-law of the accused, had resiled from her statement which was made before the Investigating Agency during the course of investigation. Therefore, no credibility be given to her evidence. Even though PW1 was subjected to cross-examination at length, despite the trial Court had given more credence to her statement and rendered the judgment of conviction for the offences punishable under Sections 341 and 302 of the Indian Penal Code. Hence, the learned Senior Counsel submits that if the same is not intervened, the accused would be the sufferer and also miscarriage of justice would occur.
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12. The learned Senior Counsel, further, places reliance on the judgment in the case of SHARANAPPA MUTYAPPA HALKE v. STATE OF MAHARASHTRA reported in (1964)4 SCR 589 wherein the proposition of law is that when the witness made two contradictory statement on oath, it is unsafe to implicitly rely on such evidence. The said issue has been addressed in a greater extent in paragraph 10 of the said judgment.
13. By placing reliance on the above citations, the learned Senior Counsel prays for consideration of the grounds that are urged in the appeal and submits that the accused deserves intervention of the conviction judgment rendered by the trial Court imposing the punishment on the accused to undergo sentence for the offences punishable under Section 320 of the Indian Penal Code, on the ground that accused is alleged to have caused injuries on the deceased by assaulting him on his neck with the help of the broken beer bottle. On all these premises, the learned Senior Counsel prays for setting aside the impugned judgment of conviction and order of sentence dated 16th December, 2017 rendered by the trial Court in SC No.78 of 2014, by allowing the appeal.
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14. On contrary, learned State Public Prosecutor-II Sri Vijayakumar B. Majage, submits that PW1-Jyothi who is none other than the author of the complaint and more so, she being the wife of the deceased, has given evidence and also supports the case of prosecution as can been seen from her evidence. But merely because the other witnesses have turned hostile, it cannot be said that more credence be given to evidence of PW2 to PW4 and even to the mahazar witnesses secured by the Investigating Officer during the course of investigation. It is quite natural that PW5 and PW6, who are the parents of the deceased, so also parents of the accused, did not stood to their version of statement and naturally they have to adduce the evidence contrary to the statement which was recorded by the Investigating Officer during the course of investigation. Merely because, PW7, PW8, PW11 and PW16, who are all the eye- witnesses to the incident, did not support the case of the prosecution, it cannot be a justifiable ground for interference as is urged by the learned Senior Counsel for the appellant/accused. He further submits that there was no dispute about the death of the deceased indicating the injuries that is inflicted on the vital part of the neck of deceased by an
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NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 assault with a broken beer bottle, which is marked as MO1. MO2 is the glass pieces. These are the material that have been secured by the Investigating Officer during the course of investigation and got them marked as material objects. Therefore, this appeal does not call for any interference as the accused alone has committed murder of the deceased by assaulting with a broken beer bottle on his neck as indicated in the post-mortem report Exhibit P15 issued by the Doctor who conducted autopsy over the dead body.
15. The learned trial Judge had addressed the issue by referring to the evidence of PW1-Jyothi inclusive of the evidence of PW24-PSI who has received the complaint and also set the criminal law into motion by recording First Information Report as per Exhibit P18. Subsequently, the Investigating Officer has taken up the case for investigation and entire investigation has been conducted, so also, spot mahazar has been conducted as per Exhibit P2 and seizure mahazar as per Exhibits P4 and P11. Voluntary statement of the accused was also recorded as per Exhibit P16. These are all the evidences considered by the trial Court while rendering the judgment of conviction and order of sentence dated 16th December, 2017.
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NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 Keeping in view the reasons stated supra, the trial Court had opined that the real truth, in the instant case, is the initial version of statement made by PW1-Jyothi who is the author of the complaint, so also, wife of the deceased. This witness had fully supported the case of the prosecution being an eye- witness to the incident. The Prosecution has successfully established the guilt against the accused beyond all reasonable doubt. Therefore, no interference is called for in this appeal as is urged by the learned Senior Counsel for the appellant, as there is no perversity or infirmity which are found in the evidence that is assessed by the trial Court keeping in view Section 134 of the Indian Evidence Act, 1872. On this premise, the learned State Public Prosecutor-II submits that the appeal be dismissed as one devoid of merits.
16. In this background of the contention made by the learned Senior counsel for the appellant, so also, the counter argument advanced by the learned State Public Prosecutor-II, it is relevant to refer to the evidence of CW30-Anand who is examined as PW24. PW24 is the Police Sub Inspector of Kollegal Town Police who recorded the First Information Report as per Exhibit P18 based on Exhibit P1-complaint made by
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NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 PW1-Jyoti the wife of the deceased. CW31-Y Amarnarayana, who is cited as witness, is examined as PW23 being an Investigating Officer and he has laid charge sheet against the accused after completion of entire investigation and during investigation he conducted spot mahazar at Exhibit P2 in the presence of panch witnesses and so also, held inquest over the dead body as per Exhibit P3 and noticed the injury inflicted over the deceased; similarly conducted seizure mahazar at Exhibits P4 and P11. Based upon the voluntary statement of the accused as per Exhibit P16, PW23-Investiating Officer had completed the entire investigation and laid the charge sheet against the accused. Merely because, charge sheet is laid against the accused, it cannot be said that the entire material that find place in the record, as well as the theory set up by the prosecution are acceptable, unless the same are subjected to examination and also stood for cross-examination as relying upon the evidence, more so marshalling of an evidence, is the domain vested with the trial Court. But PW1 to PW24 had been subjected to examination on the part of the prosecution and plethora of evidence have been rendered inclusive of getting marked Exhibits P1 to P21, so also, marking of material objects
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NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 MO1 to MO6. MO1 and MO2 are the broken beer bottle and glass pieces said to have been used by the accused to inflict injuries on the neck of the deceased as indicated at Exhibit P15-postmortem report. But the learned Senior Counsel for the appellant has taken us through the evidence of PW2 to PW17. They are the witnesses who are subjected to examination relating to prove the guilt against the accused. These witnesses have been completely given a go by to their version of statements and have not stood to their version of statement recorded by the Investigating Officer during the course of investigation.
17. PW2 and PW4 being the witnesses secured to draw the spot mahazar, also do not stand to their contention made at mahazar Exhibit P2, P4 and P11, relating to status of spot mahazar as well as the seizure mahazar.
18. PW5 and PW6 are the parents of the deceased and equally they are the parents of the accused also. They have not supported the case of the prosecution and so also stood to their version made in their statement.
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19. PW7, PW8, PW11 to PW16 are the eye-witnesses to the incident narrated in the charge sheet, they too did not stood to their version of statement which was recorded by the investigating officer during the course of investigation. Even PW1 had supported the case of the prosecution initially, but thereafter, in the cross examination, PW1 did not support the case of prosecution as is seen in the evidence of PW1 itself. PW21 being the Doctor, who conducted autopsy over the dead body and issued the post-mortem report as per Exhibit P15. The Doctor has supported the case of the prosecution in relation to infliction of injury on the vital part of the neck of the deceased. Merely because PWs1, 22 and 23 have stood to with the theory of the prosecution, it cannot be held that accused is proven of the guilt, unless there is some cogent, corroborative and consistent evidence to prove the guilt against the accused.
20. PW19 was deputed to guard the dead body; and PW20, being the police constable, had handed over the material objects to the Regional Forensic Science Laboratory to secure the chemical analysis report. Merely because, they are the official witnesses and have supported the case of prosecution, it
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NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 cannot be said that the prosecution has proved the case of the accused beyond all reasonable doubts.
21. It is relevant to refer Section 134 of the Indian Evidence Act, 1872 whereby the concept of this provision is that, merit of the statement is an important aspect. It is well known principle of law that reliance can be based on the solitary statement of the witness, if the court comes to the conclusion that the said statement is true and correct version of the case of the prosecution. This issue had been extensively addressed by the Hon'ble Delhi High Court in the case of RAJA v. STATE reported in (1997)2 CRIMES 175 DELHI.
22. Section 134 of the Indian Evidence Act relates to quality of evidence. It is the quality of the evidence and not the quantity of evidence which is required to be judged by the court to place credence on the statement. This issue was also extensively addressed by the Hon'ble Supreme Court in the case of STATE OF UTTAR PRADESH v. KISHANPAL AND OTHERS reported in (2008)8 JT 650.
23. It is relevant to refer to the judgment of LAXMIBAI (DEAD) THRU LR'S. & ANR v. BHAGWANTHBUVA (DEAD) THRU
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NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 LR'S. & OTHERS reported in AIR 2013 SC 1204, wherein in the matter of appreciation of evidence of witnesses, it is held that, it is not number of witnesses but it is the quality of evidence which is important, as there is no requirement in law of evidence that any particular number of witnesses is required to be examined to prove-disprove the fact. It is a time-honoured principle that the evidence must be weighed and not counted. The test is whether the evidence, as a ring of trust, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on the value of evidence provided by each of the witnesses rather than the multiplicity or plurality of the witnesses. It is quality and not quantity which determines the adequacy of the evidence as has been provided under Section 134 of the Indian Evidence Act. This issue has been addressed in a greater extent by the Hon'ble Supreme Court in the judgment cited supra.
24. It is also relevant to the judgment of the Hon'ble Supreme Court in the case of LALLU MANJHI AND ANOTHER v. STATE OF JHARKHAND reported in AIR 2003 SC 854. The law of evidence does not require any particular number of witnesses to be examined in proof of the given fact. However,
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NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 the Court may classify the oral testimony of the single witness into three categories, viz. (1) wholly reliable; (2) wholly unreliable; and (3) neither wholly reliable nor wholly unreliable. In the first two categories, there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty would only arise in the third category of witness where the Courts have to circumspect and has to look for corroboration in material particulars of reliable testimony while acting upon the testimony of the single witness. In the instant case, PW1-Jyothi who is none other than the wife of the deceased equally the sister-in-law of the accused, is the only witness stood to her version of statement initially, and during the later part of cross-examination she has turned around to her version in the complaint made at Exhibit P1. It is relevant to take greater care and caution to appreciate her evidence. Section 3 of the Indian Evidence Act makes it clear and also reveals that the facts needs and includes that one fact is said to be relevant to another. "Evidence" is also defined in Section 3 of the Indian Evidence Act. But the concept is, the fact is said to be proved, when after considering the matter before it, the court either believes it to exist or considers its existence so
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NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exist.
"Disprove"- a fact is said to be disproved when, after considering the matter before it, the Court either believes that it does not exist or consider its non-existence so probable that prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. These are all the things that are specifically stated in Section 3 of the Indian Evidence Act, 1872. But it is the domain vested with the trial Court to appreciate the evidence. But in the instant case, the trial Court had given more credibility to the evidence of PW1-Jyothi merely because she is the wife of the deceased who had given the complaint as per Exhibit P1 and based upon her complaint, criminal law was set into motion. Thereafter, the Investigating Officer has referred the case for investigation and the investigation has been thoroughly done and then laid the charge sheet against the accused. Merely because a charge sheet is filed against the accused, it cannot be said that the theory set up by the prosecution is to be termed as a gospel truth. The domain vested with the prosecution has to establish the guilt against the accused beyond all reasonable doubts in
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NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 terms of cogent, consistent and acceptable evidence that the accused had committed the heinous offence and not in the spur of the moment or in a fit of anger. In the instant case, there was some altercation took between the accused and the deceased with regard to their personal issues, who is the younger brother of the accused, bringing his wife and children from her parents house, and because of the said reason there was some altercation that took place, the same can be inferred against a prudent person, even going through the entire material wherein the theory set up by the prosecution. But the domain vested with the prosecution is to prove the guilt against the accused beyond all reasonable doubt in securing the conviction, if not, it is not possible to render the conviction judgment, merely because the solitary witness has to be given more credibility.
25. In the instant case the medical evidence is corroborated with the ocular testimony. Medical evidence is to be proved by the prosecution that the deceased has lost his breath because of the injuries inflicted upon the injured. In the instant case, there is no dispute about the infliction of injuries over the neck of the deceased with the help of a broken beer
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NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 bottle alleged to have been used by the accused. But it is a domain vested to the prosecution to prove the guilt of the accused by facilitating worthwhile evidence. So also, the case cannot be thrown out merely on the ground that the body has sustained injury on the vital part of the neck, but it requires some clinching evidence by the prosecution to prove the guilt against the accused by facilitating the acceptable evidence and probabilise that the accused had an intention to commit the murder of the deceased.
26. In the instant case it is required to address the scope of mens rea-guilty mind, the term used to describe the mental element required to commit a crime. Generally it requires that the accused meant or intended to do wrong or at least knew that he was doing wrong. However, the precise mental element varies from crime to crime. Most criminal cases involve one of the following kinds of mens rea, i.e. "intent". This is the explicit and a conscious desire to commit a dangerous or illegal act. For example, if a person targets and assaults another person with a goal of inflicting harm to the victim, then he is displaying some criminal intent. One of the most important ingredients of the crime mens rea i.e. an
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NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 intention to do the act knowing the legal consequences of the same. The element of mens rea is indicated by use of words such as, "intention", "malice", "fraudulent" and "reckless". There must be a mind at fault before the commission of the offence. Mens rea includes both the intention to do an act as well as abstaining from doing an act. Mere intention to do a wrongful act is itself prohibited by law. An accused will be held guilty if it is proved that he had an intention to commit the crime. But the burden of proof lies on the prosecution i.e. the opposite party and there should be sufficient justification to conclude that the intention of committing the crime existed. This larger issue has been addressed by the Hon'ble Supreme Court in various judgments. But, in the instant case, what requires to be addressed is actus reus. To constitute the crime, the third element, i.e. the act of wrong doing or which is termed as a physical event is necessary. Now, what is the actus reus? It is a physical result of human conduct, where criminal policy regarding such conduct is sufficiently harmful, it is prohibited and therefore, the criminal policy provides a sanction or penalty for its commission. The "wrong doing"
could also be defined in the words to be such result of human
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NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 conduct, because the law seeks to stop such human conduct which consist acts of commission also as acts of omission. These are all the concept of mens rea and actus reus addressed by the Hon'ble Supreme Court in various judgments.
27. In the instant case, it is useful to refer to the judgment of the Hon'ble Supreme Court in the case of ANIL PHUKAN v. STATE OF ASSAM reported in (1993)1 CRIMES 1180 SC, wherein it is discussed with regard to appreciation of evidence. It is observed that conviction can be based on testimony of a single eye-witness, provided the said testimony is found reliable or would inspire confidence of the Court. Even with regard to benefit of doubt, the concept is that the ocular evidence in murder case is unreliable and the benefit of doubt is to be given to all accused. The said proposition is reiterated in the case of CHANDUBAI SHANABAI PARMAR v. STATE OF GUJARAT reported in AIR 1982 SC 1022.
28. It is also required to refer to the judgment of Hon'ble Supreme Court in the case of GAMINI BALA KOTESWARA RAO AND OTHERS v. STATE OF ANDHRA PRADESH reported in AIR 2010 SC 589 wherein it is observed
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NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 that it is open to the High Court to re-appreciate the evidence and conclusion drawn by the trial Court only in case where judgment of the trial Court is found to be perverse. The word "perverse" to mean 'against the weight of evidence'. In the instant case, the trial court had given more credence to the evidence of PW1-Jyothi merely because she being the wife of the deceased. The same can be seen in the impugned judgment rendered by the trial Court. The several witness have given go by to their version of statement. Despite, the trial Court has arrived at a conclusion that the prosecution has proved the guilt against the accused beyond all reasonable doubt.
29. In the instant it is necessary to refer to the judgment of the Hon'ble Supreme Court in the case of PADAM SINGH v. STATE OF UTTAR PRADESH reported in AIR 2000 SC 361, wherein it is observed that it is the duty of the appellate Court to look into the evidence of the accused and arrive at a conclusion as to whether the said evidence can be relied upon or not and if it can be relied upon, then the prosecution can be said to have proved the guilt of the accused beyond all reasonable doubts. The credibility of the witness has to be
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NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 adjudged by the appellate Court by drawing inference from proved and admitted facts. Therefore, as per Section 3 of the Indian Evidence Act, it is the domain with the prosecution equally the domain vested with the trial Court, to prove the case and equally appreciated the case of the prosecution in its proper perspective. But in the instant case, the trial Court had misdirected the evidence and also misinterpreted the evidence and consequently, rendered the judgment of conviction relating to offence punishable under Sections 341 and 302 of the Indian Penal Code. This accused is in incarceration for around nine years for the reason that he committed the murder of his brother. Since the accused is unable to engage the services of a counsel, as per provisions of Article 39A of the Constitution of India, so also, Section 304 of Code of Criminal Procedure relating to rendering legal aid service to the litigants who are not able to engage the service of a counsel, and accordingly, in the instant case the accused has secured the services of legal aid as provided under Article 39A of the Constitution of India akin to Section 304 of the Code of Criminal Procedure. The learned Senior Counsel Sri P.P. Hegde, has assisted the Court for disposal of the case and emphatically submitted that the
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NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 accused is in incarceration for a period of more than nine years. Keeping in view the aforesaid contention of the learned Senior counsel, it can be said that as a prudent man, the accused is in incarceration for more than nine years which is to be termed as a considerable period, so also, suffice it to say that the accused has served the sentence and more so, it would meet the ends of justice. In view the aforesaid reasons and findings in the present appeal, it is required to be intervened by revisiting the impugned judgment of conviction and order of sentence rendered by the trial Court, if not, certainly the accused would be the sufferer and there shall be miscarriage of justice. Accordingly it is intervened. In view of the aforesaid reasons and findings, we proceed to pass the following:
ORDER
1. The appeal preferred by the appellant/accused under Section 374(2) of the Code of Criminal Procedure is hereby allowed;
2. Consequently, the judgment of conviction and order of sentence dated 16th December, 2017 passed in SC No.78 of 2014 by the Additional District and Sessions Judge, Chamarajanagar (sitting at Kollegal) for the offences punishable
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NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 under Sections 341 and 302 of the Indian Penal Code, is hereby set aside;
3. Consequent upon setting aside the judgment of conviction and order of sentence, the appellant/accused is hereby acquitted of the offences punishable under Section 341 and 302 of the Indian Penal Code for which he is charged;
4. The concerned Jail Authority is hereby directed to set appellant/accused who is in incarceration in the jail at liberty forthwith, if he is not required in any other case;
5. The Registry is directed to forward the operative portion of this Judgment/Order to the concerned Jail Authority where the accused is housed directing the Jail Authority to set the accused at liberty if the accused is not required in any other case.
30. Keeping in view the submission made by the learned Senior Counsel for the appellant with regard to observation made by the trial Court in the operative portion of the order with regard to proceeding against PW1-Jyoti for the offence punishable under Section 193 of Indian Penal Code, it is to be observed that false evidence has been given by the PW1 who is
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NC: 2023:KHC:24996-DB CRL.A No.171 of 2018 none other than the wife of the deceased and the sister-in-law of the accused. When the case against the accused has ended in acquittal, the scope of Section 193 of Indian Penal Code on the premise that false evidence is adduced, does not arise. Accordingly it is observed and initiation of any perjury proceeding against PW1-Jyothi under Section 193 of the Indian Penal Code, is absolved.
The services rendered by the learned Senior Counsel Sri P.P. Hegde in disposal of this case, is placed on record.
Sd/-
JUDGE Sd/-
JUDGE LNN List No.: 1 Sl No.: 3