Narayan vs State By Hosakote Police

Karnataka High Court

Narayan vs State By Hosakote Police on 7 May, 2024

                            -1-
                                    CRL.RP No. 792 of 2016


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU
         DATED THIS THE 07TH DAY OF MAY, 2024
                           BEFORE
          THE HON'BLE MR. JUSTICE S RACHAIAH
      CRIMINAL REVISION PETITION NO. 792 OF 2016
BETWEEN:
1. NARAYAN
   SON OF ANJINAPPA
   AGED ABOUT 41 YEARS

2.    DEVARAJU
      SON OF ABBAPPA
      AGED BOUT 36 YEARS

3.    MUNIYAPPA
      SON OF ABBAPPA
      AGED ABOUT 32 YEARS

4.    BASAVARAJU
      SON OF VARTHURMUNIYAPPA
      AGED ABOUT 30 YEARS

5.    VENKATESHA
      SON OF ABBAPPA
      AGED ABOUT 28 YEARS

      ALL ARE RESIDING AT
      GOVINDAPURA VILLAGE
      JADIGENAHALLI HOBLI
      HOSAKOTE TALUK
      BENGALURU RURAL DISTRICT - 562 114.
                                              ...PETITIONERS

(BY SRI. A V RAMAKRISHNA, ADVOCATE)

AND:
   STATE BY HOSAKOTE POLICE
   REP BY STATE PUBLIC PROSECUTOR
   HIGH COURT OF KARNATAKA
   BENGALURU - 560 001.
                                             ...RESPONDENT
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                                      CRL.RP No. 792 of 2016


(BY SRI. JAIRAM SIDDI, HCGP)

     THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE PORTION OF THE JUDGMENT
DATED 24-05-2016 PASSED BY THE PRINCIPAL SESSIONS
JUDGE, BENGALURU RURAL DISTRICT, BENGALURU IN
CRL.A.NO.44/2013 THEREBY CONFIRMING CONVICTION AND
SENTENCE PASSED BY THE TRIAL COURT AND ETC.,

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 16.02.2024, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:


                            ORDER

1. This Criminal Revision Petition is filed by the petitioners / accused, being aggrieved by the judgment of conviction and order of sentence dated 06.09.2013 in C.C.No.804/2009 on the file of Principal Civil Judge and JMFC Court, Hoskote and its confirmation judgment and order dated 24.05.2016 in Crl.A.No.44/2013 on the file of the Principal Sessions Judge, Bengaluru Rural district, Bengaluru, seeking to set aside the concurrent findings recorded by the Courts below, wherein the petitioners / accused are convicted for the offences punishable under Sections 143, 147, 148, 324, 506 read with section 149 of Indian Penal Code (for short 'IPC').

2. The rank of the parties in the Trial Court will be considered henceforth for convenience. -3- CRL.RP No. 792 of 2016 BRIEF FACTS OF THE CASE:-

3. It is the case of the prosecution that on 04.08.2006 at about 10.30 p.m., PW.1 lodges a complaint stating that PW.2 being his brother had sold eucalyptus trees to accused No.1. In the said transaction, 50% of the amount was paid to PW.2 and remaining balance had to be paid to his brother by accused No.1.

4. On 04.08.2006, at about 6.00 p.m., PW.2 asked accused No.1 to pay the balance amount. The accused No.1 quarreled with PW.2 and went away from the place. Thereafter, around about 8.30 p.m., accused No.1 along with others went near the house of PW.2 and trespassed the house and abused him in a filthy language, and assaulted PW.2 with the clubs. PW.3 who tried to pacify the matter, had also received blows with clubs, and accused No.1 stabbed on the chest of PW.3 with knife. The quarrel was pacified by CWs.4 and 5.

5. After the incident, PW.1 lodged a complaint before the jurisdictional police regarding the incident, the jurisdictional police registered a case in Crime No.369/2006 for the offences punishable under Sections 143, 147, 448, 323, 324, 506, 504 r/w 149 of IPC. After -4- CRL.RP No. 792 of 2016 conducting the investigation, charge sheet was submitted.

6. To prove the case of the prosecution, the prosecution examined 6 witnesses and got marked 5 documents as Exs.P1 to P5 and also identified material objects M.Os.1 to 3. The Trial Court held that the accused Nos.1 to 6 are found guilty of the above said offences. On appeal being filed, the Appellate Court modified the judgment of the Trial Court by setting aside the order of conviction for the offences under Sections 323, 448, 504 r/w Section 149 of IPC and confirmed the order of conviction and sentence of the Trial Court for the offences under Sections 143, 147, 148, 324, 506 r/w Section 149 of IPC. Hence this revision petition.

7. Heard Sri A V Ramakrishna, learned counsel for the petitioners and Sri Jairam Siddi, learned High Court Government Pleader for the respondent.

8. It is the submission of learned counsel for petitioners that both the Courts failed to take note of the relationship between PWs.1 to 3. In fact, PWs.1 to 3 are the relatives, their evidence should have been scrutinized properly before recording the conviction. When the entire case rests on evidence of interested witnesses, the Court -5- CRL.RP No. 792 of 2016 must see the independent corroboration. In the absence of independent corroboration, conviction ought not to have been recorded.

9. It is further submitted that PW.6 who is said to be the eyewitness to the alleged incident, initially not supported the case, subsequently, he was treated as hostile. In the cross-examination by the prosecutor, PW.6 admitted certain things. However, in the defence cross- examination, PW.6 admitted that he did not see who assaulted whom. Such being the fact, his evidence loses its significance as an eyewitness to the incident.

10. It is further submitted that though PW.1 stated in his complaint that PW.3 was assaulted with a knife on his chest and no medical records are produced to support the case. The said contradictory statement creates doubt regarding the alleged stab. As per the evidence of PW.3, accused No.5 stabbed his chest with the knife, however, PW.1 stated in his evidence that accused No.1 stabbed on the chest of PW.3. This contradictory evidence should have been considered by the Trial Court and the Appellate Court while analyzing the evidence and benefit of doubt should have been given.

CRL.RP No. 792 of 2016

11. It is further submitted that the Trial Court recorded the conviction for the offences under Section 323, 324, 504, 506 R/W 34 of IPC in the absence of proper evidence. Therefore, the concurrent findings are required to be set aside.

12. Per contra, learned High Court Government Pleader for State vehemently justified the judgments of the Courts below and submitted that the evidence of PWs.1 to 3 is consistent in respect of the quarrel which had taken place in the house of PW.2. The independent witness namely PW.6 supported the case of the prosecution. Minor contradictions or improvements are bound to occur in the evidence of eyewitnesses, that may not be material contradiction and the entire evidence of the eyewitnesses cannot be discarded.

13. It is further submitted that the Trial Court and the Appellate Court acted upon the evidence of PWs.1 to 3 and other official witnesses and recorded the conviction which requires no interference. Moreover, the Revisional Court cannot re-assess the evidence except to find out the illegality or error committed by the Courts below. Making such submission, learned High Court Government Pleader prays to dismiss the petition.

CRL.RP No. 792 of 2016

14. Having heard learned counsel for the respective parties, it is appropriate to have a cursory look upon the evidence of witnesses to ascertain as to whether both the Courts have committed any error in recording the conviction.

15. PW.1 being the younger brother of PW.2 is said to have lodged a complaint regarding the quarrel which had taken place in the house of PW.2. According to him, accused Nos.1 to 6 trespassed into the house of PW.2 and assaulted with club and knife. Further, he has stated in his evidence that after the incident, PWs.1 to 3 have been threatened with dire consequences etc. PW.1 further stated in his evidence that PW.3 was stabbed by accused No.1 with a knife on the chest. However, no medical records are produced to substantiate the stab injury.

16. PW.2 also stated about the quarrel and stated that accused No.1 stabbed PW.3 on the chest.

17. PW.3 said to be the injured has stated in his evidence that accused No.5 - Venkatesh stabbed him on his chest.

18. PW.4 said to be the witness to the spot-cum-recovery mahazar has turned hostile, not supported the case.

19. PW.5 supposed to be the eyewitness to the incident, however, has turned hostile.

CRL.RP No. 792 of 2016

20. PW.6 - Anjinappa said to be the eyewitness to the incident, has stated that the accused were assaulting PWs.2 and 3 with clubs. Except that, he did not see anything. However, the prosecution treated him as hostile and thereafter, he was cross-examined by the prosecutor. In the said cross-examination, he admitted that accused No.1 stabbed on the chest of PW.3. However, in the cross-examination of defence, he admitted that he did not see who was assaulting whom.

21. On a conjoint reading of the evidence of these witnesses, it creates doubt regarding the alleged stab injury. According to PWs.1 and 2, accused No.1 - Narayanappa stabbed PW.3 on his chest, however, the evidence of PW.3 discloses that he was stabbed by accused No.5. All the three witnesses being eyewitnesses to the incident are inconsistent in their evidence in respect of stab injury. Moreover, the knife which is said to have been recovered in presence of PW.4, but, PW.4 has turned hostile in respect of seizure of M.Os.1 and 2.

22. The prosecution has failed to prove the stab injury which is said to have been caused to PW.3 by producing wound certificate. Mere recovery of the clubs which are marked as M.Os.1 and 2 and knife - M.O.3 is not sufficient to say -9- CRL.RP No. 792 of 2016 that those weapons have been used for assaulting PWs.2 and 3 in the absence of medical records. The Trial Court and the Appellate Court while analyzing the evidence should have recorded the inconsistencies in the evidence of alleged eyewitnesses. Having failed to consider the same, resulted in passing the impugned judgments.

23. The Investigating Officer has not recovered the blood- stained clothes of PW.3 and has also not produced any wound certificates or medical records pertaining to the treatment allegedly taken at different hospitals. If the evidence of eyewitnesses especially related witnesses does not inspire the confidence of the Court, the Court must seek corroboration from independent witnesses. If the evidence of independent witnesses does not inspire the confidence of the Court, the conviction should not be recorded. However, in the present case, the evidence of PWs.1 to 3 even though inconsistent regarding the incident, the Trial Court and the Appellate Court recorded the conviction based on their evidence which is not proper and hence the conviction is held to be unsustainable.

24. In the light of the observations made above, I proceed to pass the following:-

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ORDER

(i) The Criminal Revision Petition is allowed.

(ii) The judgment of conviction and order of sentence dated 06.09.2013 in C.C.No.804/2009 on the file of Principal Civil Judge and JMFC Court, Hoskote and judgment and order dated 24.05.2016 in Crl.A.No.44/2013 on the file of the Principal Sessions Judge, Bengaluru Rural district, Bengaluru, are set aside.

(iii) The petitioners are acquitted for the offences under Sections 143, 147, 148, 324, 506 r/w Section 149 of the Indian Penal Code.

(iv) Bail bonds executed, if any, stand cancelled.

Sd/-

JUDGE Bss