Shri Subhash Naik vs State

N.A. Britto, J.—These revisions are by the accused in C. C. No.20/2000/B and are directed against Judgment dated 28-5-2007 of the learned Additional Sessions Judge, Panaji, confirming the conviction and sentence imposed upon the accused by the learned J.M.F.C., Panaji under Sections 452, 323, 325, 506(i) r/w 34 I.P.C. The families of the accused and the Complainant PW2/Mohan Naik are neighbours and they had a dispute on account of a pathway. The incident took place on 22-12-1999 at 19.30 hours at Neura in the veranda of the house of the said Complainant PW2/Mohan Naik. Immediately prior to this incident there was another incident when PW7/Rajan Naik had stepped out of the house with a bucket in his hand and while A-2/Vinod Mayenkar was passing with the scooter on the said access the scooter had dashed the bucket and the bucket had fallen down and when A-2/Vinod Mayenkar was questioned as to why he had hit the bucket with the scooter, A-2/Vinod Mayenkar flung the bucket towards the house of PW2/Mohan Naik and thereafter A-2/Vinod Mayenkar went to the house of his sister A-4/Suvarna Naik and all the four accused then came, and, A-4/Suvarna Naik with chilli powder, A-2/Vinod Mayenkar with iron rod, A-1/Subhash with a wooden rib and A-3/Ashok with a wooden danda and assaulted the said PW1/Prema Naik, the Complainant PW2/Mohan Naik, PW6/Rajeshree, PW7/Rajan and one Rasika.

Both the Courts below and particularly the learned Additional Sessions Judge has come to the conclusion that the medical evidence supported the case of the prosecution that the injuries sustained by the said injured were caused by the accused. Both the Courts below have accepted the evidence of the injured, namely PW1/Prema Naik, the Complainant PW2/Mohan Naik, PW6/Rajeshree and PW7/Rajan and also found that their evidence was corroborated by an independent witness, namely PW5/Sandesh Naik and have convicted the accused, as aforesaid.

The learned Counsel on behalf of the accused contends that the conclusion arrived at by the learned Additional Sessions Judge as regards Section 506 I.P.C. is contrary to the finding given by him in relation to Section 506 I.P.C. This contention needs to be accepted. This aspect of the case was considered by the learned trial Court whilst dealing with point no.3, observing that PW1/Prema Naik had stated that A-3/Ashok had threatened to kill them with a koita while PW2/Mohan Naik had only made a general statement that the accused had left the spot by threatening to kill them. The evidence of PW5/Sandesh was to the effect that all the accused had given threats to kill each of the family members of the Complainant. PW2/Mohan Naik and PW6/Rajeshree had not stated anything about the said threats. The learned trial Court found that the evidence of the aforesaid witnesses was corroborative, when in fact it was not, and proceeded to hold the accused guilty u/s 506(ii) I.P.C. The learned Additional Sessions Judge had correctly appreciated the evidence of the witnesses on this score but came to the wrong conclusion that the offence proved was u/s 506(i) I.P.C. The finding as regards Section 506(ii) given by the Additional Sessions Judge is found in para 24 of the Judgment. According to the learned Additional Sessions Judge while PW1/Prema Naik had stated that A-3/Ashok had threatened to kill them with koita, all other witnesses had stated that all the accused had threatened to kill them, and, this itself was sufficient to give benefit of doubt to the accused. That apart, the learned Additional Sessions Judge observed that at the time of assault none of the accused were armed with koita and that the witnesses had stated that the said threats were given while the accused were leaving the place and the material consideration was whether the threats given had raised any apprehension in the minds of the victims that the accused was going to kill them. The learned Additional Sessions Judge also observed that none of the accused were armed with koita and therefore there could be no apprehension that the accused would kill them with koita. The learned Additional Sessions Judge also observed that there was a material discrepancy on the threats given as none of the other witnesses have stated that the threats were given to kill with koita and that if such serious threats were given to kill the witnesses would have been consistent in their testimonies and such consistency was lacking in the prosecution witnesses. No fault could be found with the said finding and having found that there were material discrepancies on the score of threats, the learned Additional Sessions Judge ought to have given benefit of doubt to the accused in relation to Section 506(ii) I.P.C. On the face of the finding recorded the learned Additional Sessions Judge could not have scaled down the conviction from Section 506(ii) to Section 506(i) I.P.C. The accused therefore deserve to be acquitted u/s 506(ii) for which they were charged and tried.

The learned Counsel next submits that the conclusions arrived at by the learned first appellate Court are based on suggestions put in the cross-examination of the witnesses and based on the said suggestions no conclusions could be arrived at. Regarding this aspect, the learned Counsel has placed reliance on a Judgment of the Division Bench of the Gujarat High Court in the case of Koli Trikam Jivraj and Another Vs. The State of Gujarat, and which according to the learned Counsel was followed by another Division Bench Judgment of the Delhi High Court in the case of State Vs. Tika Ram, .

In the first Judgment, the learned Division Bench of the Gujarat High Court observed that if a lawyer of the accused puts a suggestion to a prosecution witness that a particular event happened, or happened in a particular manner, then it cannot be implied that the lawyer commits himself to such an assertion. Suggestions put in cross-examination are no evidence at all and on the basis of such suggestions no inference can be drawn against the accused that he admitted the facts referred to in the suggestions. It is possible that in putting suggestions the lawyer of the accused, if he thinks fit and proper, may not put the entire case of the accused in the cross-examination of a prosecution witness.

In the second Judgment, the learned Division Bench of the Delhi High Court approved the view in the case of Koli Trikam Jivraj and another v. The State of Gujarat(supra) and held that suggestions put in cross-examination are no evidence at all against the accused and on the basis of such suggestions, no inference can be drawn against the accused that he admitted the fact referred to in the suggestions.

There is no doubt that the learned Additional Sessions Judge has made lavish use of certain suggestions put on behalf of the accused in the cross-examination of witness. The learned Additional Sessions Judge observed that in the cross-examination of PW7/Rajan it was suggested to him that the incident had started soon after he stepped out of the veranda; that the accused No.2 was proceeding with the scooter on the foot access; that accused No.2 did not purposely dash against him; that after the dash on the bucket accused No.2 stopped the scooter and that after the dash on the bucket PW7/Rajan and his family members started assaulting accused No.2. It was also suggested that on hearing the noise the family members of accused No.2 came to the spot for his rescue. The accused by putting such suggestions had admitted that there was an incident in which the scooter driven by accused No.2 had hit the bucket carried by PW7/Rajan. The learned Counsel therefore contends that this would be a fit case for remand for re-consideration of the evidence by the learned Additional Sessions Judge. I am not inclined to accept the said suggestion. It can also be seen that the learned Additional Sessions Judge has discussed the medical evidence in paras 21 and 22 of the Judgment being supportive of the case of the prosecution that the injuries of the injured prosecution witnesses were caused by assault on the injured. The other evidence of the prosecution witnesses has been dealt with in the later part of paras 15, 16 and 17 of the Judgment further observing that the fact that the accused had assaulted the Complainant PW2/Mohan Naik and his family members is also corroborated by the independent witness namely PW5/Sandesh who had stated that there was a fight going on in the veranda of the Complainant PW2/Mohan Naik and all the four accused who were armed with danda, iron rod and wooden rib and were assaulting PW7/Rajan, PW6/Rajeshree, the said Rasika and PW2/Mohan Naik and he along with others had separated the accused and the injured and PW7/Rajan had fallen unconscious in the veranda. In other words, it is not on suggestions alone but also on considerations of the evidence led by the prosecution that the learned Additional Sessions Judge has confirmed the view held by the learned J.M.F.C. as regards the assault by the accused on the said prosecution witnesses.

Next, the learned Counsel on behalf of the accused submits that the Investigation Officer was not examined and as a result of that the accused was deprived of proving the contradictions as well as finding out as to why the weapons of offence were not attached by him. As regards this aspect of the case, the learned trial Court has observed that the prosecution could not examine the Investigation Officer as he had retired from service and was not found and therefore his presence could not be secured. The learned trial Court has also observed that the non examination of the Investigation Officer was not fatal to the case of the prosecution. As far as the contradictions are concerned, the learned Magistrate has observed that there were hardly any contradictions which were required to be confirmed through the Investigation Officer. No doubt the prosecution witnesses have deposed that the chilli powder was found in the veranda, which apparently was not attached by the Investigation Officer, but which certainly would not be sufficient to overthrow the entire case of the prosecution overboard particularly when the evidence of the injured witnesses have been found convincing by both the Courts below. That lapse on the part of the Investigation Officer is insufficient to discard the case of prosecution in its entirety. Likewise, it is quite probable that the other weapons used by the accused were carried away by them and for that reason were not found in the veranda and therefore were not attached by the Investigation Officer. The non attachment of the weapons would again be insufficient to discard the story of the prosecution. In my view, there was no question of any prejudice having been caused to the accused on account of non attachment of the chilli powder or the other weapons used by the accused. In conclusion, it may be stated that except for the conviction and sentence imposed u/s 506 I.P.C. for which the accused requires to be acquitted, there is no merit in these revisions which are hereby dismissed.