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Judgment
(PER: HON'BLE MRS JUSTICE RAJESHWARI N.HEGDE)
This appeal is filed under Section 378(1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.') challenging the judgment dated 07.06.2023 passed by the II Additional District and Sessions Judge, Ballari (hereinafter referred to as the ‘trial Court’), in S.C. No.04/2018.
For the sake of convenience, the ranking of the parties is referred to as before the trial Court.
The case of the prosecution, in brief, is as follows:
That on 08.05.2016 at about 7.00 p.m. the complainant, by name Kuber S/o K. Shivaram, (PW1) his younger brothers Lokesh, Chandrashekhar and their father went to Sanjeevarayanakote to see the grand father who was suffering from ill health. When they were standing infront of the house of their grand father, accused No.1 to 9 being the members of unlawful assembly armed with clubs and stones came there and started abusing them as his grand father constructed compound to restrain their movements. The Accused went to assault the grand father of the complainant, immediately they made attempt to pacify the quarrel, but the accused started to abuse them in filthy language, assaulted with club and hands and stone. They threw the stones and clubs to the door and roof which was covered with sheets, and caused damage worth of Rs.5000/- and also made an attempt to commit the murder of the complainant. The complainant and other injured took treatment in VIMS hospital, Bellary. Thereafter the complainant lodged the complaint against the accused as per Ex.P.1 which is registered in Crime No.207/2016 initially for the offences punishable under Sections 143, 147, 148, 324, 504 and 427 R/w 149 IPC. Thereafter, based on the requisition made by the PSI as per Ex.P.15 case was also registered against the accused for the offence punishable U/s 307 of IPC along with other offences previously registered.
After registering the complaint and completion of the investigation, charge-sheet has been filed before the JMFC. After compliance of the proceedings under section 207 of Cr.P.C. the learned JMFC has committed the case to the Sessions Court, which is registered as SC No.4/2018. Thereafter, the court heard the prosecution and defence, and framed the charges against the accused for the said offences. Accused pleaded not guilty and claimed trial.
Prosecution in order to bring out or prove the guilt of the accused, examined in all 14 witnesses as PW1 to PW14 and got marked the documents Ex.P1 to P15 and material objects MO1 and MO2.
After completion of the prosecution evidence, statement of the accused as contemplated under Section 313 of Cr.P.C., has been recorded, the accused have denied the incriminating evidence appearing in the evidence of the prosecution witnesses and they have denied their involvement in the alleged offence. However, they did not choose to lead any defence evidence.
Learned Sessions Judge, after hearing both sides, proceeded to pass the impugned judgment dated: 07.06.2023, whereby, the accused no. 1 to 9 are acquitted of all the offences charged against them punishable under Sections 143, 147, 148, 323, 324, 307, 427 and 504 R/w Section 149 of IPC.
Being aggrieved by the impugned judgment of acquittal, the State has preferred the present appeal on the following grounds:-
The judgment and order of acquittal passed by the Trial Court is contrary to law, facts and evidence on record besides being arbitrary.
The Trial Court neither based on oral nor on documentary evidence placed on record, proceeded to pass the impugned judgment and thereby committed grave error.
The Trial Court has committed grave error of law without observing that CWs.1, 4 to 7, 9 and 10 are examined as PW1 to 7 as injured witnesses and has not considered. The statement of the complainant and other witnesses though corroborative of material on record.
The Trial Court has committed grave error of law without considering that the accused No. 1 to 7 were holding wooden sticks and stones in their hands and scolding in abusing filthy language. At that time the witnesses went to rescue CW11, but were abused in filthy language by the accused and accused No.1 assaulted CW4 using wooden sticks on his head and left shoulder, accused No.2 assaulted CW-5 on his head and also on the right knee, which is not properly appreciated by the trial Court. Further accused No.3 assaulted CW6 with hands, accused no. 4 assaulted CW7 with stone, Accused no. 6 assaulted CW8 on his chest, accused no. 4 assaulted CW1 on his head, and also CW9 with hands on back and chest, accused no. 9 and 3 assaulted CW9 with stone on left shoulder, accused no. 8 assaulted CW9 on his head with stone. This overt act committed by all the accused persons is not properly appreciated by the trial Court.
Trial Court committed grave error of law without observing that the accused persons damaged the house of the CW1., all the witnesses were injured and have taken treatment at OPD CW1 has lodged the complaint as per Ex.P1 and police have recorded the further statement of the CW1 and also identified 2 sticks and 8 stones which are marked as MO1 and MO2. This evidence is not properly appreciated by the trial Court.
The Trial Court committed grave error of law without observing the statement given by PW8, the doctor who treated the injured witnesses and issued wound certificate as per Ex. P2 to 9.
The Trial Court committed grave error of law without taking into consideration, the sole witness as per Section 134 of Indian Evidence Act in respect of considering the member quality of witnesses and not quantity.
The trial court ought to have taken into consideration the statement of injured witnesses, wound certificate issued by PW8, statement given by witnesses which cannot be discarded.
On these grounds, the appellant/state has prayed for allowing the appeal, setting aside the impugned judgment of acquittal and convicting the accused for the offences alleged against them.
Heard Sri.T.H. Hanumareddy the Addl. SPP appearing for the appellant-State, heard Sri. M.Maregouda the learned counsel appearing for the respondents/accused.
Upon consideration of the rival submissions and on perusal of the entire evidence on record as well as the memorandum of appeal, the following point arises for our consideration:
“Whether the impugned judgment of the trial Court suffers from illegality, perversity and calls for interference by this Court?”
For convenient reference, the particulars of the witnesses examined by the prosecution and the substance of their evidence are setout as under:-
PW1 Kubera in his evidence deposed, in consonance with the complaint Ex.P.1 to the effect that, when they were infront of grand father’s house, accused persons came together with weapons, picked up quarrel with their grand father in connection with errection of compound and they assaulted them, due to which they took treatment in the hospital and filed the complaint.
a). PW2 by name Lokesh, PW3 by name Doddabasappa, PW4 by name Tippeswamy, PW5 Girish, PW6 Chandrashekhar, PW7 Umapati who are all injured persons deposed similarly as deposed by the complainant PW1
b). PW8, Dr. Hari Dattatreya deposed that on 08.05.2016 when he was in hospital, 8 injured persons with the history of assault came for treatement. He examined the injured Lokesh, Kubera, Doddabasappa, Tippeswamy, Girish, Bharat, Chandrashekhar and Umapati and issued wound certificates as per Ex.P.2 to 9 respectively.
c). PW9 M. Anvar, the then ASI deposed about the receipt of the complaint and registering the FIR as per Ex.P10.
d). PW10 Nagaraj and PW11 Hemanna are said to be the eye witnesses to the incident who have not supported the prosecution case.
e). PW12 Chandrashekhar said to be the witness to spot and seizure panchanama Ex.P.13. But, he has not supported the prosecution case.
f). PW13 B.M. Honnurbabu the then ASI deposed about the part of the investigation.
g). PW14 M. Vasant Kumar is the PSI who conducted further investigation and filed the charge sheet.
On the basis of evidence of the aforesaid witnesses, learned Addl. SPP argued that, in this case the accused formed unlawful assembly in connection with the erecting of compound on the road which is meant for passage of the accused and others and also attempted to kill the complainant and others. In this case PW1 to PW7 are the injured persons and they deposed about the incident and injuries sustained by them. Further, their evidence is also corroborated with the evidence of PW8 and major witnesses also supported the prosecution version i.e. seizure of material object MO1 i.e. clubs and MO2 i.e. stones. Despite the clear and convincing evidence, the learned Sessions Judge, without properly appreciating their evidence, erroneously acquitted them.
Per contra, learned counsel appearing for the accused/respondents argued that according to the prosecution, incident happened on 08.05.2016, but complaint is lodged on 10.05.2016. Therefore, there is delay in lodging the complaint. The accused No.4 has also filed a counter case and counter complaint. Both the cases were investigated by the same Investigating Officer. Further, all the injuries sustained by the injured witnesses are all simple in nature and therefore it is argued that the Learned Sessions Judge has rightly appreciated the evidence on record and has came to the right conclusion that, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and therefore it is argued that this Court need not interfere with the finding of the trial Court. Hence, prayed for dismissal of the appeal.
On going through the impugned judgment, it is observed that the learned Sessions Judge has pointed out that though P.W.1 to PW7, have sustained injuries, however their evidence did not corroborate with that of any other independent witnesses. Other independent witnesses like Panchas have also not supported the case of the prosecution. Such being the case, prosecution has failed to prove its case beyond all reasonable doubt and therefore the trial court proceeded to pass the impugned judgment acquitting all the accused of all the offences.
Learned Additional SPP argued that though the evidence of injured witnesses has not corroborated with any other evidence of independent witnesses, however the injured witnesses who stepped into the witness box had deposed about the incident. They sustained the injury, further they immediately went to the hospital and took the treatment and also wound certificates marked as Exhibits P2 to P9 establish that they have sustained the alleged injuries. Therefore, their evidence self-sufficient to prove the guilt of the accused and their evidence need not be corroborated with any other independent witnesses.
Per-contra, learned counsel appearing for the accused/respondent argued that even these accused have also sustained injuries in the said incident. Accused never went to assault the complainant or any other injured persons. They themselves (complainant and others) picked up quarrel and in the said quarrel they have sustained the injuries. After that, the accused have taken treatment in the hospital and lodged the complaint, before the Bellary rural police station in Crime No.208/2016 for the offences punishable under Sections 143, 147, 148, 323, 324, 504 R/w 149 IPC.
It is contended that in this case, earlier the complainant registered case against accused for the similar offences. However later, again case was registered for the offence punishable under Section 307 of IPC only to implicate these accused persons for higher offence. Further it is argued that the same Investigating Officer who conducted the investigation on the complaint filed by Honnurswami, who is the accused No.4 in this case is the Investigating Officer herein as well and after completion of the investigation the police filed a charge sheet against this complainant and other injured persons which is registered as SC No. 47/ 2022 and in that case after the trial, these injured persons were acquitted of all the offences. Against which the State has not filed any appeal.
The learned counsel for the respondent has produced the charge sheet, the evidence of the witnesses of the prosecution, and the judgment passed in SC No.47/2022. Further, respondent has relied upon the judgment of the Apex Court passed in the case of State of Rajasthan v. Hanuman in Criminal Appeal No. 631/ 2017. It is argued that the law is well settled by catena of decisions of this Court that in an appeal against acquittal, interference can only be made if the only possible view based on the evidence points to the guilt of the accused and rules out his innocence.
Learned counsel for the respondent/accused argued that, in the present facts and circumstances as dispute arose in respect of the erection of compound and on both sides they lodged the complaint and both groups have sustained injuries and both the injured have taken the treatment in the hospital, the complaint lodged by the accused against the complainant in the present case and other injured persons, after the trial, all the complainant and injured persons were acquitted of the offences, the State has not filed any appeal against such acquittal, and the trial Court has properly appreciated the evidence on record and has come to the right conclusion that the prosecution has failed to prove the case and accordingly acquitted the accused and therefore relying on the aforesaid judgment of the respondent as argued in this case, the impugned judgment passed by the trial Court, acquitting the accused cannot be interfered with.
On re-appreciation of the evidence on record, it has been rightly observed by the learned Sessions Judge that, though PW1 to PW7 are the injured witnesses and they took treatment in the hospital, however, the independent witnesses, PW10 and PW11, have not supported the prosecution version, by stating that they have not seen the incident at all, PW12 has stated that he does not know the contents of Ex.P13 i.e. spot panchanama, and further in the evidence of the injured witnesses PW1 to PW7 there is a delay in lodging the complaint. Though it is stated in the complaint that they were admitted in the hospital and that thereafter they filed the complaint however, on perusal of the medical documents it discloses that PW1 and PW2 were the injured witnesses admitted to the hospital on 08.05.2016 and discharged on the next day that means on 09.05.2016. Furthermore, the other injured witnesses who have not taken treatment as an inpatient could have lodged the complaint soon after the incident. But there is a delay of 2 days in lodging the complaint. Taking into consideration all these facts and circumstances, the trial court after perusal of materials on record has acquitted these injured persons of the said offences. Apart from that there was counter complaint against these injured persons and case was registered against them. Taking into consideration all these aspects, we are of the opinion that the Prosecution has failed to prove the guilt of the accused beyond any reasonable doubt. The Trial judge has rightly appreciated the evidence on record and has come to the right conclusion and acquitted the accused. The grounds urged in this appeal are devoid of merit and do not warrant any interference of this court. Accordingly, we proceed to pass the following order:
ORDER
The appeal is dismissed.
The judgment and order of acquittal dated 07.06.2023 passed by the learned II Additional District and Sessions Judge, Ballari, in S.C. No.04/2018 is hereby confirmed.
The bail bonds and surety bonds, if any, executed by the accused shall stand discharged.
The Registry is directed to transmit the Trial Court Records forthwith, along with a copy of this judgment.