Narayanaswamy vs Narayanaswamy and Others

Anand Byrareddy, J.—The present petitioner was the complainant in case bearing Crime No. 259/2007 of the Kolar Rural Police Station. The same was thereafter registered as SC 224/2007 on the committal of the case to the court of the Principal sessions Judge, Kolar. The case of the prosecution in a nutshell is that on the morning of 27.3.2007 at about 10.30 a.m., the respondents-accused formed themselves into an unlawful assembly and assaulted Venkateshappa who is also known and called as Venkatesh, PW.1 Narayanaswamy, PW.2 Ramesh, who are the brothers of Venkatesh and Smt. Shyla, the wife of the deceased with deadly weapons, such as choppers and clubs, at a point of time when the deceased Venkatesh was grazing the sheep over the bund of the tank in the village E. Kambahalli in the limits of Kolar Rural Police Station and that Venkatshappa, the injured succumbed to the injuries so sustained by him at the R.L. Jalappa Hospital, Kolar on the afternoon of 27.3.2007.

A crime came to be registered on the basis of the statement said to have been made by the injured Narayanaswamy and the investigation of the case was taken up.

The result of the investigation having disclosed the commission of offence which are made penal under sections 143, 147, 148, 324, 504, 506, 307, 302 read with section 149 of the Indian Penal Code, 1860 (Hereinafter referred to as the ''IPC'' for brevity), a final report came to be filed before the Civil Judge and JMFC, Kolar.

The case came to be committed to the court of sessions at Kolar. Other than the first accused Narayanaswamy the rest of the accused in the case had the benefit of bail.

During trial, the prosecution had examined in all 28 witnesses as PWs.1 to 28 and got marked 38 documents as Exhibits P.1 to P.38. In addition to this, the prosecution had also marked 14 material objects as MOS. 1 to 14.

As against this oral and documentary evidence brought on record, in the case by the prosecution, the accused while placing reliance on the evidence available on record in the case itself did not choose to lead any independent evidence in the case. However, the accused got marked 36 exhibits as exhibits D.1 to D.36 while the prosecution witness were being cross examined.

On an appreciation of the entire evidence available on record in the case, both oral and documentary, the learned trial judge by his judgment dated 24.1.2009, pronounced in S.C. 224/2007 on his file, ordered the acquittal of the accused of all the charges leveled against him. The State being satisfied with the finding given by the learned Sessions Judge, while ordering the acquittal of the accused has not chosen to file an appeal before this court challenging the legality and correctness of the judgment of acquittal passed in the case.

The petitioner, however, seeks to question the same.

It is contended that it was the case of the prosecution that the deceased had been attacked in the presence of independent eye witnesses, PW-4, 6 and 8. PW-1, 2 and 3 were injured eye witnesses to the incident. The evidence of these witnesses was consistent, inspite of which, the trial court having acquitted the accused, it is contended, was on mere technicalities which has resulted in a miscarriage of justice.

The learned counsel for the petitioner in elaborating on the above has raised additional grounds at the stage of final hearing of this petition. The same is to the following effect:

That immediately after the incident, the deceased Venkatesh was brought to S.N.R. Hospital, Kolar. Since there were no facilities, immediately he was shifted to Jalappa Hospital, Kolar. While he was under treatment in Jalappa Hospital at about 1.00 to 1.30 p.m., he succumbed to the injuries. Meanwhile, the Police came to the Jalappa Hospital PW.1 has narrated the incident and the same was recorded by the Police as per the complaint Ex.P.1

It is further contended that PW-1 Narayanaswamy is brother of the deceased. He has deposed to the effect that six years prior to the incident, the deceased has purchased the land from Srinivas Murthy - PW-11. PW-12 has also deposed to the effect that the said land was 30 feet away from Chinnappa (accused No. 8). Hence there was ill will between the family of the accused and the deceased.

It is further contended that PW-1 Narayanswamy has deposed that on the date of incident, he was ploughing the land, which was situated by the side of land of accused No. 8 Chinnappa. The accused Chinnappa, Narayanaswamy, Narasimhappa, Nagaraja, Nagesh Babu @ Babu, Venkatesh, Muniswamy, Manjunatha and Smt. Kanthamma came from Muniyappa''s land towards the tank bund, holding choppers and clubs. The deceased Venkatesh was on the tank bund. Venkatesh and Ramesh (PW-2) were grazing the sheep, the accused No. 1 Narayanaswamy, accused No. 2 Narasimha, accused No. 6 Muniswamy, accused No. 3 Nagaraj had picked up a quarrel stating that he had purchased the property, next to that of the accused and that they could not tolerate being neighbours. The accused No. 1 Narayanaswamy had assaulted the deceased Venkatesh with a chopper and injured his left hand and also assaulted him on his right shoulder. Accused No. 2 assaulted the deceased on his back and head with a chopper. Accused No. 3 assaulted the deceased on his legs with clubs. Accused No. 4 Venkatesh, assaulted the deceased on his legs and back with a club. Accused No. 5 Babu had also assaulted the deceased. Accused Nos. 7 and 8 had assaulted the deceased with clubs. PW-1 came there and asked the accused as to why they were assaulting the deceased. Venkatesh, after sustaining the injuries, rolled down from the top of the tank bund to the foot of the bund and the base of a peepal tree. Accused No. 1 Narayanaswamy, accused No. 2 Narasimha, accused No. 6 Muniswamappa had assaulted the complainant PW-1 with a chopper on his right shoulder, back and head. Accused No. 3 Nagaraj and accused No. 4 Venkatesh, accused No. 5 Babu, accused No. 8 Chinnappa, accused No. 7 Manjunath had assaulted the complainant with clubs. PW-2 Ramesh came there to rescue PW-1. The accused No. 1 Narayanaswamy, accused No. 2 Narasimha, accused No. 6 Muniswamappa had assaulted PW-2 with a chopper on his right forearm and on his back. Accused No. 3 Nagaraj, accused No. 4 Venkatesh, accused No. 5 Babu, accused No. 8 Chinnappa had assaulted PW-2 with clubs. PW-3 Smt. Shylaja, while questioning the accused as to why they were assaulting, accused No. 4 Venkatesh had assaulted her on her shoulder with a club. PW-4 Chandrappa and PW-6 Narayanaswamy came there from their land and in the meanwhile, other villagers had also gathered on seeing all of them, the accused fled from the scene of offence with their weapons. The injured, PW-1 and PW-2 were shifted to NSR Hospital and from there, they were shifted to Jalappa Hospital. The Police had come and recorded the complaint (Ex-P1) of PW-1. The complaint Exhibit P1 discloses the names of all the accused.

It is further contended that the defence had cross examined the witnesses at length and a specific answer was recorded by the trial court in the form of question and answer, regarding the aspect of the attempt at rescuing the deceased and his having rolled down the tank bund. Therefore, the evidence of PW-1 in respect of the overt act of the accused and the place of offence on the tank bund ought to have been considered as the place of offence.

It is further contended that PW-2 Ramesh (injured), the brother of the deceased had corroborated the version of PW-1. Further he had deposed that he and the deceased Venkatesh were tending their sheep near the bund and near the graveyard, which was closer to the spot where the incident had occurred. In the cross-examination, the witness had given specific answer stating that the deceased Venkatesh rolled down the bund. Therefore, the evidence of PW-2 was also corroborated regarding the place of offence both as tankbund and the base of the peepul tree. PW-3 Smt. Shylaja, wife of the deceased had also deposed regarding the overt act of the accused and the assault by the accused, respectively, while they were tending their sheep.

It is further contended that PW-4 Chandrappa in his cross examination had specifically deposed that the accused assaulted the deceased Venkatesh on the tank bund and also at its foot.

Further he has clarified that at both places, the accused had assaulted the deceased with choppers and clubs. PW-6 Narayanaswamy has also corroborated the version of PWs-1, 2 and 4 regarding the overt act of each of the accused regarding assault with macchu and clubs.

From the evidence narrated supra, it is contended that as the place of offence is the tank bund and the base of the peepul tree, the trial court ought to have considered the same in the judgment.

It is further contended that accused No. 3 had lodged the complaint against deceased Venkatesh, Narayanaswamy and Ramesh in Crime No. 109/2007. The same is marked as Exhibit D.34. Accordingly, they have not disputed the place of offence as being the tank bund and the presence of the deceased, PW-1 and PW.2. Exhibits - D.35 and D.36 are the statements of Chandrappa and Narayanswamy, recorded by the police in Crime No. 109/2007, lodged by accused No. 3 and the same witnesses had been examined by the prosecution as PW-4 and PW.6. Therefore, in view of the admissions made by the accused in their complaint, the prosecution has made out a case regarding the assault, the place of offence, as well as the presence of the deceased and PW-1, 2, 4 and 6. Exhibit P-9, the mahazar, Exhibit P. 16 sketch, also corroborate the place of incident. Hence, the trial court could not have disbelieved the evidence of the injured and eye-witnesses.

It is further contended that PW-14 Dr. Venkatesh of R.L. Jalappa Hospital had conducted the post-mortem. According to the report, there were five injuries on the deceased and these injuries included a cut on his left hand. Further, he had deposed that the injuries caused to the deceased could be caused by a chopper and clubs (MOs.1 to 4). Hence, there is a corroboration by the medical evidence and eye-witnesses.

PW-15 Dr. Sujatha had deposed that she examined PW-1 and PW.2 and found three injuries and two injuries on them, respectively. She had also given wound certificate Exhibits P. 13 and P. 14 and she had further deposed that the injuries were grievous and could be caused by the Material Objects in question. It is contended that Exhibits - D1 to 4 were extracts of the accident register pertaining to deceased Venkatesh, Narayanaswamy (PW-1) and Ramesh (PW-2). On perusal of the same, the history of assault by Narayanappa, Chinnappa and Venkatamuniyappa, who are the accused in the case is evident.

During the course of cross examination, Exhibits Ex-D.1 to D.4 have been confronted to PW-15 Dr. Sujatha and she has specifically denied regarding the over-writings and insertions etc., alleged to have been given by the Resident Medical Officer. The defence, in order to prove the same, ought to have examined the Resident Medical Officer in respect of Exhibits D.1 to D.4.

It is further contended that PW-18 is recovery panch, who had deposed that accused No. 1 Narayanaswamy, accused No. 2 Narasimhappa, accused No. 6 Muniswamappa had shown the place of offence and also produced 2 choppers and one club and the same had been seized under Exhibit P. 17. He has also identified the material objects before the court. Therefore, the evidence of eye-witnesses is corroborated in respect of weapons used by the accused in the commission of the offence.

It is further contended that the trial court ought to have considered the corroboration regarding place of incident, between oral and medical evidence, recovery of weapons at the instance of the respective accused, identification of weapons before the trial court.

It is contended that the judgment of acquittal passed by the trial court is not on sound principles of law and there is poor appreciation of evidence.

It is contended that the documentary and oral evidence narrated above required proper consideration by the trial court as to who were the aggressors.

The learned counsel places reliance on a decision in Ram Briksh Singh and Others Vs. Ambika Yadav and Another,

Per contra, the learned Senior Advocate, Shri C.V. Nagesh, appearing for the counsel for the respondents contends as follows:--

In exercise of its revisional jurisdiction, the revisional court cannot convert a finding of acquittal into one of conviction. However, it can order a further enquiry into the matter. Ordering further enquiry into the matter is limited to certain exceptional cases. They are:

a) Where the trial court has no jurisdiction to try the case but has ordered the acquittal of the accused.

b) Where the trial court has wrongly shut out the evidence with which the prosecution wished to produce

c) Where material evidence has been over looked by the trial court to be in--admissible.

d) Where the acquittal is based on a compounding of the offence which is in--valid under the law.

It is contended that although these illustrations are not exhaustive, the powers of the revisional court are limited. The revisional court cannot, in exercise of the power confirmed upon it, interfere with the judgment of acquittal passed by the trial court, in the absence of any error of law or absence of glaring omission on the part of the trial judge in considering the evidence available on record in the case or the trial court for the purpose of ordering the acquittal of the accused, has taken into consideration certain irrelevant materials. The revisional court, in view of the law laid down by the Apex court, cannot enter upon the merits of the matter and re-appreciate the evidence on record in the case, thereby substituting its opinion as more possible than the opinion expressed by the trial court. The revisional court cannot also comment on the credibility of the witnesses despite the fact that the trial court might have gone wrong as regards the analysis of the evidence for the prosecution. The learned Counsel draws reference to the following judgments of the Apex Court in respect of the above contention.

(a) Johar and Others Vs. Mangal Prasad and Another,

(b) State of Maharashtra vs. Sujay Mangesh Poyarekar, 2008 (3), and

(c) Chandrappa and Others Vs. State of Karnataka,

Insofar as the motive for the commission of the crime is concerned, it is contended that it is alleged that consequent to the purchase of certain extent of land that abuts the land of the first accused by the member of the family of the deceased, the accused had an axe to grind against the deceased for the reason that the member of the family of the deceased became successful in purchasing those lands, detrimental to their interests.

Insofar as the aspect of motive is concerned, the prosecution has examined PW-11 Srinivasamurthy and PW-12 Muniyappa. PW''s 11 and 12 have not whispered anything about the group of the accused approaching them at any point of time for the sale of the land, which come to be sold in favour of the family of the deceased. In fact, the witnesses have categorically stated that other than the deceased, no one had approached them for the sale of land. Consequently, the motive projected by the prosecution as found by the learned Judge, has no legs to stand.

Insofar as the aspect of eye testimony is concerned, it is contended that Exhibit P-1 is the complaint filed by PW-1 Narayanaswamy. On the basis of this complaint, the crime came to be registered and the investigation was taken up. In Exhibit P-1 Narayanaswamy would state that PW-4 Chandrappa, PW-5 Srinivasa, PW-6 Narayanaswamy and PW-7 Muniswamy, who were said to be present at the scene of offence interfered in the quarrel and took the injured to the S.N.R. Hospital, Kolar for treatment. PW-1 Narayanaswamy, in his complaint does not even remotely make a reference to the presence of PW-3 Shyla, who is also said to have been brutally assaulted by some of the accused. PW-3 Shyla in fact, is none other than the wife of the deceased and she is said to have made all out efforts to extricate the deceased from the clutches of the accused. Added to this, PW-3 Shyla did not take any treatment for the injuries allegedly sustained by her at the hospital nor had she accompanied the deceased to the Hospital.

The name of PW-8 Sonnegowda, who during the trial of the case, is projected as an eye witness, does not find a place in Exhibit P-1 as having been present at the scene of offence. Added to this, the statement of Sonnegowda came to be recorded by the investigator a month after the date of the incident, despite he being available in the village with in the reach of the Policemen. This witness, despite his presence in the village, when the policemen visited the village for one reason or the other, does not even voluntarily disclose to the policemen about the incident said to have been witnessed by him.

It is pointed out that while taking into account these two major infirmities in the case, the learned trial judge has chosen to discard the testimony of PW-3 and PW-8 as eye witnesses to the incident.

PW-4 Chandrappa is said to have gone to the scene of offence along with PW-6 Narayanaswamy to the place of offence. Exhibits D-35 and D-36, which are the statement of these two witnesses recorded by the investigator during the course of the investigation of the case, are marked and are proved by drawing their attention initially and thereafter by putting the same to PW-27 Siddarangappa, Sub-Inspector of Police, who had recorded the statement. Exhibits D-35 and D-36 would indicate that PW-4 and 6 had not gone to the place of incident at all and that they have not seen the incident of assault on the deceased and the other injured in the case. Added to this, these two witnesses would state during the course of their cross examination, that the incident of assault on the person of the deceased and the injured did not take place over the bund of the tank, instead it took place near the land of Chandrappa and the burial ground and that the assault on the deceased and the injured was not seen by them while the deceased and injured came to be assaulted near the land of the Chandrappa and the burial ground. Their testimony is in total contradiction with the testimony of the other tell-tale eye witnesses in the case.

PWs 5 and 7, whose names would find a place in Exhibit P-1 as the witness, who went to the rescue of the deceased and the injured in the case, have stated in un-equivocal terms that they went to the scene of offence along with hundreds of villagers of the village after hearing the commotion and that they did not see the accused assaulting either the deceased or the injured in the case. PW-5 Srinivasa has not been treated hostile by the prosecution although PW-7 Narayanaswamy came to be treated as hostile by the prosecution. The learned trial judge having read the evidence of PW-5 and 7 and having come to the conclusion that their evidence is of no avail to the case of prosecution, has with a positive finding discarded their testimony.

It is contended that what remained on record for consideration to find out the truth or otherwise of the case of the prosecution is the testimony of PW''s-1 and 2. PW-1 Narayanaswamy and PW-2 Ramesh are the brothers of deceased and they are said to be injured in the case.

PWs 1 and 2, in their testimony, would state that the deceased came to be taken to the SNR Hospital at Kolar for treatment of the injuries sustained by him. Exhibit P-1, the complaint of Narayanaswamy, on which basis, the crime came to be registered makes a mention of the deceased having been assaulted on his left hand with a chopper by A-1. Exhibit P-1 does not even remotely make a mention of any other accused other than the first accused having assaulted the deceased. During trial, PW-1 would with impunity state that A1, A2, A3, A4, A5, A6 and A7 assaulted the deceased with deadly weapon.

Exhibit-D1 is the wound certificate pertaining to the deceased. Exhibit D-11 is the post-mortem report pertaining to the deceased. Exhibit D-1 makes a reference to only one injury whereas Exhibit P-11 makes a reference to 5 injuries. If really 7 persons had assaulted the deceased, with three of them armed with chopper and remaining 4 of them armed with clubs, the deceased would not have sustained a single injury as noticed by the doctor who had examined him first in point of time. This apart, Exhibit D-1 and the evidence given by doctor Sujatha, who is examined as PW-15, who in fact, is the doctor who treated the deceased at the earliest post of time, would indicate that the deceased no sooner was brought to the hospital made a statement before her to the effect that a certain Venkatamuniappa and Munsiwamappa assaulted him on the morning of 27.03.2007. This statement of the deceased has got to be taken and read as the dying declaration of the deceased. If this be so it is not known as to who this Venkatamuniappa and Muniswamappa are, and as to why they have not figured as accused in the case. It is also not known as to why the investigator who had collected this document from the hospital did not bring it on record in the case.

It is contended further that as is evident from Exhibit D-2 and D-3, which are taken out from the original accident register at a point of time, when the witnesses tendered her evidence in the case is totally different from Exhibit P13 and P-14, which are said to be one given by the doctor after taking out the same from the original accident register. The tell-tale extract of the wound certificate pertaining to PW''s-1 and 2 makes a reference to more number of injuries than the one found in Exhibit D-2 and D-3 which are the photo copies taken out from the original accident register. Interpolations and over writings are clearly visible. If the say of PW-1 is to be accepted on its face value as true, which is to the effect that he came to be assaulted with deadly weapons by A1, A2, A4, A5, A6, A7, A8 and if the say of PW-2 who states that he came to be assaulted by A1, A2, A3, A4, A5, A6 and A8 by using deadly weapon on its face value as true, then Exhibits D-2 and D-3 would not have indicated a solitary injury on each one of them instead would have indicated more number of injuries as found in the tampered and fabricated wound certificates which are marked as Exhibits P-13 and P-14, respectively.

If one were to go by the testimony of the other tell tale eye witnesses who are examined in the case who in a nut shell would state that PW-1 Narayanaswamy came to the place of assault after the deceased came to be assaulted and PW-2 Ramesh came to the scene of offence after PW1 Narayanaswamy was assaulted and PW-3 came to the spot of offence after PW-1 and 2 came to be assaulted would indicate that PWs-1 and 2 could not have witnessed the assaulted on the person of the deceased.

The trial judge having adverted to this part of evidence available on record in the case has chosen to discard their testimony with regard to incident of assault on the person of the deceased. The learned trial judge has also chosen to discard the testimony with regard to the incident of assault on their persons in view of the material discrepancies in the wound certificate and the testimony of the other tell tale eye witnesses. PWs 1 and 2 as is evident from the omissions and contradictions marked in the case have obviously chosen to give a totally different story during the trial of the case with regard to the actual assault and the place of offence. In this view of the matter the trial judge has chosen to disbelief their say with regard to the incident of assault in question.

The trial judge in view of the contradictory say of Panchas and the investigator has chosen not to place any reliance on their testimony regarding the recovery evidence brought on record in the case. The trial judge held that the recovery made is false has the same defies elementary logic and commonsense.

On an over all appreciation of evidence available on record in the case, the trial judge having come to the conclusion that the prosecution was unsuccessful in establishing the guilt of the accused in relation to the charges leveled against them beyond all reasonable doubt, has while extending the benefit of doubt to the accused, ordered their acquittal in the case.

The learned Counsel contends that the judgment of acquittal passed in the case by the trial judge does not therefore warrant interference by this court in its revisional jurisdiction and requests that the appeal may be dismissed. Without having to repeat the glaring discrepancies high lighted by Shri Nagesh, and having regard to the law as laid down in the several authorities cited at the bar, it cannot be said that the present case would fall in a category of exceptional cases warranting the exercise of revisional jurisdiction to reverse the judgment of acquittal passed by the trial court. Accordingly the petition is dismissed.