The State Of Karnataka Through ... vs Santoshi W/O Bhaskar And Ors
2021 Latest Caselaw 6996 Kant

                                1


            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

     DATED THIS THE 22 ND DAY OF DECEMBER 2021

                         PRESENT

           THE HON'BLE MR.JUSTICE R. DEVDAS
                            AND
     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR


             CRIMINAL APPEAL No.3604/2013

BETWEEN:

The State of Karnataka
Through Market Police Station,
Rep. by its Addl.State Public Prosecutor.
                                            ... Appellant
(By Sri.Prakash Yeli, Additional SPP)
AND:
1.     Santoshi W/o: Bhaskar
       Age: 56 Years,
       Occ: Head Master
       R/o: H.No.10-3-124/3
       Near Abdul Faiz Darga,
       Bidar.
2.     Arunkumar S/o: Bhaskar
       Aged: 24 Years,
       Occ: Student,
       R/o: H.No.10-3-124/3
       Near Abdul Faiz Darga,
       Bidar.
3.     M.D.Maheboob @ Jahangir
       S/o: Mukdumsab Fakeer,
       Age: 28 Years, Occ: Driver,
                              2


     R/o: Neelamnalli, Now at near
     Abdul Faiz Darga Faizapur,
     Bidar.

4.   Attu @ Atik S/o: Mohd. Shafiyoddin,
     Age: 24 Years, Occ; Student,
     R/o: Near Abdul Faiz Darga,
     Bidar.

5.   Mohd. Shaker
     S/o: Mohd. Chand Pasha,
     Age: 24 Years, Occ: Student,
     R/o: Near Abdul Faiz Darga,
     Bidar.

6.   Illu @ Immatiyaz @ Illiyas,
     S/o: M.D.Abdul Kareem,
     Age: 23 Years, Occ: Mechanic
     Near Abdul Faiz, Bidar.
                                        ......Respondents

(By Smt.Anuradha M.Desai, Advocate and
  Sri. Kedar Desai, Advocate for R1 & R2
  Sri. Dustagirsab B.Nadaf, Amicus Curiae for R3 To R6)

      This Criminal Appeal is filed under Section 378(1) &
(3) of Cr.P.C. praying to grant leave to appeal against the
judgment and order dated 05.01.2013 passed by the
Principal Sessions Judge, Bidar in S.C.No.159/2011
thereby acquitting     the respondents-accused for the
offence punishable under Sections 144. 148, 323, 324,
307, 504 & 506 r/w 149 of IPC.

      This Criminal Appeal having been heard and reserved
for   Judgment     on   17.12.2021,     coming   on    for
'Pronouncement of Judgment' this day, Rajendra
Badamikar, J., delivered the following:
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                         JUDGMENT

This appeal is filed by the State through Bidar

Market Police Station under Section 378 of Cr.P.C.,

challenging the judgment of acquittal dated

05.01.2013 passed in S.C.No.159/2011 by the

Principal Sessions Judge, Bidar, whereby the learned

Sessions Judge has acquitted the

accused/respondents herein for the offence punishable

under Sections 144, 148, 323, 324, 307, 504 and 506

r/w 149 of IPC.

2. In brief, the case of the prosecution is that

accused No.1 is the first wife of complainant and

accused No.2 is the son of complainant born to his

first wife-accused No.1. It is alleged by the

prosecution that accused No.1 has filed a civil suit in

respect of 4 acres of land, belonging to complainant

and he has deserted her. It is also alleged by the

prosecution that the complainant has taken second

wife by name Rizwana @ Rita, about 10 to 12 years

ago and he is residing with her near Abdul Faiz Darga.

It is further the case of the prosecution that on

15.07.2010, when the complainant was in his house

along with his second wife and children born through

second wife, at 8.30 p.m., the accused came in Toyota

Qualis vehicle bearing registration No.MH-17/P-2999

and they formed an unlawful assembly and started to

abuse the complainant in filthy language questioning

his guts to go to Court to attend hearing of the civil

dispute scheduled on the next day morning. Then the

complainant came out of the house to front-yard and

he has challenged his son/accused No.2 that he will

attend the Court on the next day in any event. Then,

it is alleged that accused No.2 held him by shirt and

assaulted him as well as kicked on his abdomen and

chest. Then according to the prosecution, accused

No.3-Mahaboob, accused No.4-Shaker and accused

No.5-Attu, who were in the Quallis vehicle rushed to

the spot and accused Nos.4 and 5 held him while

accused No.3-Mahaboob assaulted with beer bottle on

his forehead causing bleeding injuries to him. It is also

alleged that then, Shaker also assaulted the

complainant with club on his head and when the

second wife-Rizwana @ Rita intervened, the accused

No.2 assaulted on her abdomen and caused pain. It is

the further case of the prosecution that, then accused

No.1 abused the second wife alleging that because of

her all these problems have cropped up and she is

unable to get her share in the property and so saying

she brought a can containing 5 liters of kerosene and

poured kerosene on complainant and his second wife

and was about to set them fire by igniting match stick.

Meanwhile, Yusuf, Iqbal Shah, intervened and rescued

them. Then it is also alleged that all the accused gave

life threat to the complainant that if he attends the

Court next day, they are going to finish him. Then the

complainant along with second wife went to Bidar

Hospital in an auto for treatment. MLC was issued and

Investigating Officer visited the hospital and recorded

the complaint. Thereafter, the Investigating Officer

undertook the investigation and he has drawn spot

mahazar, recovery mahazar etc., and found that there

is sufficient material evidence as against the accused

and submitted charge sheet against the accused for

the offence punishable under Sections 144, 148, 323,

324, 504, 506, 307 r/w Section 149 of IPC.

3. Then, the accused have appeared before

the learned Magistrate and were enlarged on bail.

They were represented by defence counsel and

prosecution papers were furnished to them as

contemplated under Section 207 of Cr.P.C. Then the

magistrate has committed the matter to Sessions

Court under Section 209 of Cr.P.C. As there are

sufficient grounds to proceed against the accused, the

learned Sessions Judge has framed the charge under

Sections 144, 148, 323, 324, 504, 506, 307 r/w

Section 149 of IPC. The accused pleaded not guilty

and claimed to be tried.

4. To prove the guilt of the accused,

prosecution has examined in all 13 witnesses as

PWs.1 to 13 and also got marked 10 documents as

Exs.P1 to P10. Further, the prosecution has also

placed reliance on 7 materials objects marked as

Mos.1 to 7.

5. After conclusion of the evidence of the

prosecution, the statement of accused under Section

313 of Cr.P.C. is recorded to enable the accused to

explain the incriminating evidence appearing against

them in the case of the prosecution. The case of

accused is of total denial and they did not chose to

lead any oral or documentary evidence in support of

their evidence.

6. After having heard the arguments of

learned Public Prosecutor as well as learned defence

counsel and after appreciating the oral and

documentary evidence, the learned Sessions Judge

found that prosecution has failed to bring home the

guilty of the accused/respondent herein beyond all

reasonable doubt for the offence punishable under

Sections 144, 148, 323, 324, 504, 506, 307 r/w

Section 149 of IPC and accordingly acquitted them by

exercising the powers under Section 235(1) of Cr.P.C.

7. Being aggrieved by this judgment of

acquittal, the State has filed this appeal.

8. We have heard the arguments advanced by

the learned Addl. SPP and learned counsel for the

respondents and amicus curiae. We have also

perused the trial Court records in detail.

9. The learned Addl. SPP would submit that

the judgment of acquittal passed by the trial Court is

erroneous and arbitrary. He would contend that trial

Court has failed to appreciate the oral and

documentary evidence in proper perspective. He

would also submit that the evidence of PW.6, who is

complainant and PW.7 the eyewitness, is corroborated

by each other and further the evidence of PW.1-

medical officer is also supporting the case of the

prosecution. He would further contend that the eye-

witnesses have also supported the case of the

prosecution and minor contradictions are bound to

occur, which does not go to the root of the case. He

has also drawn the attention of the Court regarding

observations of the trial Court that there appears to

be some material evidence against accused Nos.1 and

2. But however, the trial Court has proceeded to

acquit the accused. Hence, he would contend that the

trial Court has failed to appreciate the oral and

documentary evidence and it has resulted in

miscarriage of justice. As such he would seek for

setting aside the impugned judgment of acquittal and

prayed for convicting the accused/respondents.

10. Per contra, learned counsel appearing for

respondent Nos.1 and 2 and Amicus curiae for

respondent Nos.3 to 6 would support the judgment of

acquittal passed by the trial Court. They would

submit that the evidence lead by the prosecution is

inconsistent with each other and does not corroborate

in material aspects. They would further submit that in

FIR the name of accused No.6 was not at all referred

and no specific overt act is attributed to him. They

would also contend that the recovery of material

objects is not established as pancha witnesses have

turned hostile and the evidence of material witnesses

PWs.6 and 7 is contradicting with each other. They

would also contend that the manner in which the

investigation is conducted casts a serious doubt

regarding genesis of the case and further contend that

though the incident is said to have been taken place in

the year 2010, the material object MO.2 discloses that

it was manufactured and released in the year 2011,

which clearly established that it was planted. They

would further contend that the medical evidence is

also not corroborative and as such they would submit

that the trial Court is justified in acquitting the

accused/respondents herein. Hence, they would seek

for dismissal of the appeal.

11. We have given our anxious consideration to

the arguments advanced by both the parties.

12. Now, the following point would arise for our

consideration:-

(a) Whether the judgment of acquittal passed by the trial Court is erroneous, illegal, arbitrary and capricious so as to call for interference by this Court?

13. The respondents have been prosecuted for

the offence punishable under Sections 148, 323, 324,

504, 506, 307 r/w Section 149 of IPC. However, the

charge was framed under Sections 144, 148, 323,

324, 504, 506, 307 r/w Section 149 of IPC. It is an

undisputed fact that accused No.1 is the wife of

complainant and accused No.2 is the son of

complainant. It is also evident from the records that

accused No.1 has initiated civil suit against the

complainant-PW.6 herein. According to the

prosecution, PW.7 is Rizwana @ Rita, the second wife

of complainant-PW.6. But this fact is disputed by

accused. However, it is an undisputed fact that there

is no dissolution of marriage between accused No.1

and complainant-PW.6.

14. PW.1, is the doctor who has given first aid

to complainant and PW.7. PW.2-Ismail Bee, PW.4-Asif

and PW.8-Shabana, are alleged to be the eye-

witnesses who claim to be the tenants of complainant-

PW.6. PW.3-Gouse and PW.4-Asif, are the sons of

PW.7. PW.5 is the Investigating Officer, while the

complainant is examined as PW.6. PW.7 is alleged

second wife of complainant. PW.9-Iqbal Shah and

PW.10-Soulubee are circumstantial as well as eye-

witness. PW.11-Mallappa, PW.12-Ganapathi and

PW.13, are the pancha witnesses but they have

turned hostile.

15. Exs.P1 and P2 are the wound certificate

while Ex.P3 is the complaint. Exs.P5 and P7 are the

seizure panchanamas while Ex.P6 is the spot mahazar.

Ex.P8, the FSL report and Ex.P9 is Agreement-cum-

undertaking said to have been transacted between the

complainant and accused Nos.3 to 6. Ex.P10 alleged

161 statement of PW.9 said to have been recorded by

the Investigating Officer. MO.1 is club while MO.2, is

beer bottle alleged to have been used for assault.

MO.3 is the plastic dabba alleged to have been

containing kerosene which was said to be poured on

PWs.6 and 7. MOs.4 to 7 are clothes belonging to

PWs.6 and 7.

16. It is the specific case of the prosecution

that on 15.07.2010 around 8.30 p.m., all the accused

came to house of complainant in Toyota Quallis

vehicle bearing registration No.MH-17/P-2999 and

complainant was assaulted and accused No.1 poured

kerosene on complainant and PW.7 by attempting to

set them on fire. The complainant is a material

witness in the instant case and he is examined as

PW.7. In his evidence, he claims that CWs.7 to 11 are

the tenants and further admits that accused No.1 is

his first wife, accused No.2 is his son, while PW.7 is

his second wife. When, he is having first wife, then

how is he has contacted the second marriage with

PW.7 is not at all forthcoming. On the contrary, it is

the contention of accused that in order to deprive the

share of accused Nos.1 and 2, the complainant is

putting forward a false claim that he married PW.7.

In his examination-in-chief, he has deposed in terms

of the complaint averments. However, his evidence is

silent regarding the overt act on the part of accused

No.6. In the examination, he admits civil dispute

between the parties. Admittedly, he was working in

DCC Bank and now he claims to be a retired

employee. He further admits that when he started his

life with Rizwana @ Rita, accused No.1 started

demanding share in the property but he has refused

the same but he admits his relationship with PW.7.

Further, he asserts that he had not divorced accused

No.1 and their marriage is still subsisting. His

evidence further clearly discloses that initially accused

No.2 assaulted him by hands on his abdomen and

then he was kicked and later on accused No.3

assaulted on his forehead by beer bottle. He further

asserts that later on accused Nos.4 and 5 have

assaulted him by clubs on his head. If this version is

to be taken into consideration, a question will arise as

to whether he could sustain only simple injuries as

referred in Ex.P2. The wound certificate-Ex.P2 simply

discloses that cut lacerated wound on fore head and

no fracture was recorded and further he suffered

contusion-abrasions on the back. But in his evidence,

he claims he was assaulted by clubs on his head by

accused Nos.4 and 5 and was kicked by accused No.2.

In that event, he could have sustained some other

injuries on his head but that is not forthcoming.

Further, though he asserted that accused No.1, has

poured kerosene on him also but Ex.P2 does not

discloses that the cloths were smelling of kerosene.

17. Apart from that, it is the case of the

prosecution that accused No.1 brought the kerosene

can from the Toyota Quallis vehicle in which they

came but the evidence of PW.6, does not disclose this

aspect and he simply deposes that accused No.1

brought kerosene and splashed towards him. In that

event some portion of the body or cloths could have

came in contact with kerosene but the evidence of

PW.6 clearly discloses that he is exaggerating things.

18. Further, he pleads ignorance regarding

relationship with one Yusuf, Ismail and PW.7 as well

as PW.10, who are the brother-in-law, relative, sister

and mother of PW.7, the alleged second wife of

complainant. When complainant states that he is

leading marital life with PW.7 Rizwana @ Rita for more

than 12 years, he should be knowing her relatives

including the mother, brother, sister etc. But his

contention discloses that he is trying to evade the

questions by pleading ignorance of his relationship. He

did not disclose the abusive words and his further

cross-examination discloses that he took an auto

rickshaw to go to the hospital and no auto rickshaw

had come to the house so as to pick him to the

hospital. The evidence clearly discloses that the

dispute between the parties started only when the

complainant developed some relationship with his

alleged second wife PW.7-Rizwana @ Rita.

19. PW.7-Rizwana @ Rita has corroborated the

evidence of PW.6. She also deposed regarding

accused No.2 assaulting her husband and kicking on

his chest and abdomen and first time she deposed

regarding accused No.6 assaulting her husband which

is not the case of PW.6 himself. According to PW.6,

accused No.3-Mahaboob assaulted him with bottle but

this witness claims that accused No.6 assaulted him.

As per her evidence, accused No.1 splashed kerosene

on her husband but as per the complaint allegations,

the kerosene was poured on PWs.6 and 7 and it is

hard to accept that these two witnesses simply

allowed the accused to pour kerosene on their body.

Further, PW.7 claims that PW.6, was unconscious and

she went along with him to the hospital. PW.6, never

asserted that he was unconscious. Further, she claims

that for three day, she was in the hospital. But on

perusal of Ex.P1, it is noticed that there were no

injuries on her body and if at all, she was assaulted,

there should have been some injuries on her body.

However, Ex.P1 discloses that PW.1-medical officer

has recorded regarding she complaining of pouring the

kerosene oil and smelling kerosene as well as itchings

but he did not certify that he did smell of kerosene

and this material evidence is also missing as same is

not recorded in Ex.P1. There is no reference in Ex.P1,

regarding admitting her in the hospital and since she

did not suffer any injuries, questions of admitting her

to the hospital does not arise.

20. The evidence of PWs.2, 3 and 4, is in-

consistent and contrary to each other. On appreciation

of the evidence, it is evident that there is no

crystallized testimony of witnesses corroborating each

other regarding specific overt act of each accused. On

the contrary, the evidence discloses that it is in-

consistent. Further, as rightly observed by the learned

Sessions Judge, some of the witnesses did not whisper

regarding the overt act of accused No.2 while some of

the witnesses tried to improve version by

exaggeration. Even PW.7 has exaggerated her version

regarding she getting admitted in the hospital for 7

days, which is not supported by the evidence of

medical officer who is examined as PW.1.

21. PW.5, is the Investigating Officer and he

has deposed regarding investigation done by him. He

has deposed regarding drawing the mahazar and

seizure of clothes. However, the pancha witnesses in

this regard have turned hostile. Though the FSL

report-Ex.P8, establish that traces of kerosene was

found on the cloths but that does not establish that

the said clothes were belonging to the complainant

and PW.7 and were seized from their custody. The

author of Ex.P8 is also not examined by the

prosecution. Further, material contradiction is

regarding seizure of MO.2 broken beer bottle, from

the spot. But on perusal of MO.2, it is evident that it

was released for sale in the year 2011, however the

incident is said to have occurred on 15.07.2010 itself.

If, at all the incident has occurred in the year 2010,

the question of using MO.2-bottle of subsequent

release in the market for commission of offence does

not arise at all and it clearly discloses that it has been

planted by the Investigating Agency.

22. Further, on perusal of Ex.P3, it is evident

that only accused Nos.1 to 5 were referred there and

name of accused No.6 is not referred. Even, the spot

mahazar at Ex.P6, does not disclose tracing of blood

stains at the spot while the witnesses claim was that

there were blood stains at the spot. The complainant

has placed reliance on Ex.P9. Ex.P9 is said to be a

document in writing obtained from the complainant by

accused Nos.1 and 2 that he shall not lay claim to the

property in dispute in the civil litigation. It is

interesting to note here as to how Ex.P9 came to be

produced as during the course of evidence, the

complainant PW.6 directly produced Ex.P9 and same

was entertained. There is no procedure followed in

this regard. Further, Ex.P9, is dated 16.07.2012, only

demonstrate some transaction between accused Nos.3

to 6 with PWs.6 and 7, but not in respect of the

present case. According to the complainant, this

document was got executed forcibly by the accused. If

at all this document was got executed forcibly, then

this document should have been in the custody of the

accused. But it was found to be in the custody of

complainant and reasons for retaining this document

for a long period, that too executed two years after

the alleged incident, is not at all forthcoming. Further,

there is no explanation as to how this document came

in custody of the complainant and there is no

reference in this document regarding this incident.

Hence, on appreciation of the evidence, it is evident

that the witnesses were changing their stances as per

their convenience and the evidence also discloses that

there are material contradictions regarding time of

arrival of the police to the hospital.

23. Learned counsel for the

respondents/accused has placed reliance on a decision

of this Court from Dharwad Bench in Criminal Appeal

No.2575/2012 dated 09.08.2021, wherein this Court

by relying on a decision of the Hon'ble Apex Court

reported in (2017) 5 SCC 719, Hakeem Khan and

Others Vs. State of Madhya Pradesh, has held that

when the view taken by the trial Court is also

plausible view it cannot be disturbed only the ground

that the other view is also possible.

24. The learned Addl. SPP has placed reliance

on a decision reported in 2019 SAR (Criminal) 126,

Bhagirath Vs. State of Madhya Pradesh, and

argued that the evidence of injured witness stands on

higher footing. There is no dispute regarding

proposition of law laid down in the said decision but

when circumstances warrant to appreciate such an

evidence, then it is required to be appreciated as per

the provisions of Evidence Act only. In the instant

case, considering relationship between the parties and

inconsistent evidence and improvements by PWs.6

and 7 and their interest against accused Nos.1 and 2

and planting of MO.2 and Ex.P9, clearly establish that

such evidence requires strict corroboration. Hence,

considering the facts and circumstances of the case in

hand, the principles enunciated in the above said case

cannot be made applicable to the facts and

circumstances of the case in hand. On the contrary,

the learned counsel for the respondents however

placed reliance on an un-reported decision of the

Hon'ble Apex Court in Criminal Appeal No.1323/2011

dated 28.05.2013, Sujit Biswas V/s State of Assam,

wherein the Hon'ble Apex Court in paragraph No.6 has

observed as under;

"Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be proved, and something that 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between 'may be' and must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be true' and 'must be true' covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied".

25. Further, in a decision reported in AIR

1973 SC 2773, Kali Ram Vs State of Himachal

Pradesh, the Hon'ble Apex Court has further held as

under;

"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence."

26. Hence, it is evident that mere suspicion

however grave or strong, it could not take the place of

proof and when there are two views possible, view in

favour of the accused shall prevail. In the instant

case, the evidence led by the prosecution does not

conclusively establish the guilt of accused and

considering the contradictions, improvements in the

evidence, they fall short of proof and merely on the

basis of suspicion the accused cannot be convicted.

27. Further, in the decision reported in AIR

2016 SC 2045, V.Sejappa Vs. State by Police

Inspector Lokayukta, Chitradurga, the Hon'ble

Apex Court in paragraph No.21 has observed that if

the ground of acquittal on which the conclusion of the

trial Court has based are reasonable and plausible, the

High Court shall not interfere in such matter merely

because other view is possible. Further in the decision

reported in AIR 2016 SC 5231, Mahavir Singh Vs.

State of Madhya Pradesh, the Hon'ble Apex Court

has dealt with the powers of Appellate Court and held

that when two conclusions are possible, based on

evidence available on record, the interference with the

findings of the trial Court in case of acquittal is not

permissible. Hence, the Hon'ble Apex Court,

repeatedly observed that when the view taken by the

trial Court is also a possible view, the High Court

cannot interfere with the said view merely on the

ground that the other view is also possible. In the

instant case, the evidence lead by the prosecution

does not inspire confidence in the Court. Admittedly

there is serious dispute regarding properties between

the parties and admittedly complainant-PW.6 is

denying the claim of accused Nos.1 and 2, who are his

wife and son. The evidence is required to be assessed

in this background also and further he has not

divorced accused No.1, but claims that PW.7 to be his

second wife.

28. Looking to these facts and circumstances

and considering the contradictions, inconsistencies

and improvements the evidence lead by the

prosecution is not acceptable. Further, it is also

important to note here that all along it is alleged that

the accused have travelled in a vehicle but the

statement of owner is not available. If at all the

vehicle was used, there must have been some

evidence in the form of statement of owner of the

vehicle to show that he had handed over the this

vehicle to any of the accused, but this material is also

missing. Hence, considering all these facts and

circumstances, it is evident that the trial Court has

appreciated the oral and documentary evidence and

considering the contradictions and improvements, has

given the benefit to the accused. The said view taken

by the trial Court is also possible and as such, it does

not call for any interference. Looking to these facts

and circumstances, it cannot be said that the

judgment of acquittal passed by the trial Court is

either erroneous or illegal or arbitrary, so as to call for

interference by this Court. Under these circumstances,

the appeal is devoid of merits and as such we answer

the point under consideration in the negative.

Accordingly, we proceed to pass the following:-

ORDER

The appeal stands dismissed.

The judgment of acquittal dated 05.01.2013

passed in S.C.No.159/2011 by the Principal Sessions

Judge, Bidar, is hereby confirmed.

The fees of amicus curiae is fixed at Rs.5,000/-.

Sd/-

JUDGE

Sd/-

JUDGE

msr